Slavery and the Second Amendment

 

Servile Insurrection and the Right to Keep and Bear Arms

Clayton E. Cramer[1]

Abstract: It has become very popular by those arguing for the Second Amendment is simply an obsolete antiquity to claim that the Second Amendment’s original purpose was the preservation of slavery.  This article examines the evidence used to justify this claim and finds the evidence wanting.  Debates and other texts of the time show a consistent explanation by both Federalists and Antifederalists for a right to keep and bear arms, and one not designed to prevent insurrection, but to make it possible.

The Bogus Hypothesis

Carl T. Bogus “Hidden History of the Second Amendment” tells us, “The Second Amendment’s history has been hidden because neither James Madison, who was the principle author of the Second Amendment, nor those he was attempting to outmaneuver politically, laid their motives on the table.” [2]  Near the end of his article, Professor Bogus admits, “[T]he evidence is almost entirely circumstantial.  Madison never expressly stated that he wrote the Second Amendment for that purpose….  Another reason is that the available records are woefully incomplete.”[3]

We also have the word of one of Bogus’ villains that servile insurrection was not a concern:

[T]he United States exhibit to the world the first instance, as far as we can learn, of a nation, unattacked by external force, unconvulsed by domestic insurrections, assembling voluntarily, deliberating fully, and deciding calmly, concerning that system of government under which they would wish that they and their posterity should live. [emphasis added][4]

 

The Stated Purpose

Generally, one would hope for a claim to be a little stronger than, “It was a secret.  They kept that secret so well that there is no actual evidence.”  This might be a plausible supposition if there was no clear evidence of some other intent. 

As it happens, both Federalists and Antifederalists openly stated arguments for a right to keep and bear arms.  None of these arguments make any reference to slavery or the danger of servile insurrection.  Instead, they argued for the right as a necessary tool for insurrection.  At the Virginia ratification convention, Patrick Henry argued against ratification because he saw the powers of the proposed national government as being too capable of tyrannical abuse:

If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute!  The army is in his hands, and if be a man of address, it will be attached to him, and it will be the subject of long meditation with him to seize the first auspicious moment to accomplish his design; and, sir, will the American spirit solely relieve you when this happens?…  [T]he President, in the field, at the head of his army, can prescribe the terms on which he shall reign master, so far that it will puzzle any American ever to get his neck from under the galling yoke.  I cannot with patience think of this idea.  If ever he violates the laws, one of two things will happen: he will come at the head of his army, to carry every thing before him; or he will give bail, or do what Mr. Chief Justice will order him.  If he be guilty, will not the recollection of his crimes teach him to make one bold push for the American throne?  Will not the immense dif­ference between being master of every thing, and being ignominiously tried and punished, powerfully excite him to make this bold push?  But, sir, where is the existing force to punish him?  Can he not, at the head of his army, beat down every opposition?  Away with your President! we shall have a king: the army will salute him monarch: your militia will leave you, and assist in making him king, and fight against you: and what have you to oppose this force?  What will then become of you and your rights?  Will not absolute despotism ensue?[5]

 

Patrick Henry expressed not fear of slave rebellion, but of an oppressive national government, which could only be resisted by an armed populace. 

Other Antifederalists also made clear that their concerns about this new national government might require an armed populace to rescue Americans from tyranny.  Luther Martin of Maryland, who was one of the members of the Philadelphia Convention who would not sign it, argued against ratification in a pamphlet:

But I appeal to the history of mankind for this truth, that when once power and authority are delegated to a government, it knows how to keep it, and is sufficiently and successfully fertile in expedients for that purpose.  Nay more, the whole history of mankind proves that so far from parting with the powers actually delegated to it, government is constantly encroaching on the small pittance of rights reserved by the people to themselves and gradually wresting them out of their hands until it either terminates in their slavery or forces them to arms, and brings about a revolution.[6]

 

While Martin references slavery, it was not concern about African-Americans in bondage, but the prospect of a tyrannical government reducing its citizens to that condition, requiring the people to take up arms in resistance.

James Madison arguing for ratification in Federalist 46 also clarified the purpose of a broadly armed citizenry in resisting the tyranny of a national government.  “The only refuge left for those who prophecy the downfall of the State Governments, is the visionary supposition that the Federal Government may previously accumulate a military force for the projects of ambition...”  Madison asserted the political unlikeliness of such an event, but:

Extravagant as the supposition is, let it however be made.  Let a regular army, fully equal to the resources of the country be formed; and let it be entirely at the devotion of the [Federal] Government; still it would not be going too far to say, that the State Governments with the people on their side would be able to repel the danger.  The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms.  This proportion would not yield in the United States an army of more than twenty-five or thirty thousand men.  To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their com­mon liberties, and united and conducted by governments possessing their affections and con­fidence.  It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.[7] [emphasis added]

 

It is certainly arguable that the relative capabilities of the United States military today might result in a different result from Madison’s confident conclusion of the overthrow of national tyranny.  Nonetheless, it is clear that Madison regarded a universally armed population as a fundamental tool for insurrectionary action, much as the widespread ownership of arms made possible the American Revolution.

Alexander Hamilton in Federalist 29 argued that a “select corps” (professional military) could be trained to a higher level of efficiency than a general militia, might under some conditions, be necessary:

[B]ut if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens little if at all inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow citizens—This appears to me the only substitute that can be devised for a standing army; the best possible security against it, if it should exist.[8]

 

This is not an explicit assertion of an individual right to arms possession, but a population “little if at all inferior to them in… the use of arms” seems pointless for resisting such an army unless possessed of arms appropriate to such conflict.

 Other Federalists were also explicit as to the role of an armed polity in restraining tyranny.  Federalist Noah Webster:

Another source of power in government is a military force.  But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression.  Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe.  The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.  A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.[9]  [emphasis in original]

 

Who Requested the Right to Keep and Bear Arms?

If concern about slave insurrection was a factor, one might expect to see more requests for this right to keep and bear arms from the states where slavery was a dominant part of the economy and thus especially fearful of slave rebellion.  Only four state ratifying conventions requested a Bill of Rights that were entered in the official journal of the First Congress: South Carolina, New Hampshire, Virginia, and New York.[10]  Some states neglected to make any requests for a Bill of Rights; others, such as North Carolina and Rhode Island, did not ratify the Constitution until after Madison’s proposal for a Bill of Rights had already been debated.

One unofficial request for a right to keep and bear arms came from the losing side of the Pennsylvania ratifying convention:

That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.[11]  [emphasis added]

 

While unofficial, most scholars consider this request on par with the official requests.  Pennsylvania’s slave population was only 0.9% in 1790[12] reflective of strong Quaker disapproval of slavery.  Pennsylvania started the gradual emancipation of slaves in 1780.[13]

New Hampshire’s requests for a Bill of Rights included: “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.”[14]  New Hampshire’s population was 0.1% of the population.[15]  New Hampshire’s courts interpreted their 1783 state constitution as prohibiting slavery.[16]

Virginia’s request for a right to keep and bear arms might lend support to the Bogus claim.  South Carolina, the big player in the slavery game submitted a list of desired amendments to the Constitution, on May 23, 1788.  It is remarkably short, and contained no request for a right to keep and bear arms.  South Carolina did request an amendment prohibiting a standing army in peacetime, except with the “consent of three fourths of the Members of each branch of Congress.”  The only amendment of the Bill of Rights clearly recognizable in South Carolina’s request is the Tenth Amendment, reserving powers to the states.[17] 

New York’s request for a right to keep and bear arms came with its ratification of the Constitution on July 26, 1788.  It included a preamble defining the nature of human rights, then launched into a lengthy description of the rights to be protected by a Bill of Rights.  Among these rights:

That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State. [emphasis in original] [18]

 

New York’s slave population was 6.2% of its population[19] and might well be considered evidence for the Bogus hypothesis.  New York, however, was already headed towards abolition.  The New York legislature first passed a bill for gradual abolition of slavery in 1785.  Because the bill denied black suffrage, the Council of Revision vetoed the bill.  A variety of measures were subsequently passed that prohibited importation of slaves, freed all slave imported illegally, and allowed masters to free slaves under fifty who were capable of supporting themselves.  In 1799, New York started the gradual abolition of slavery.[20]  This hardly sounds like a state in terror of slave rebellion.

Massachusetts ratified without requesting a Bill of Rights.  While debating such a request, Samuel Adams proposed the following addition to the ratification:

And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.[21]  [emphasis added]

 

While the proposal lost, 187-168, it shows a serious concern for such a right, in a state whose judiciary had abolished slavery as contrary to the 1783 state constitution.[22]  Again, a strong argument against a slavery motivation for the Second Amendment.

Slavery Did Not Motivate the Second Amendment

Unlike the Bogus claim which acknowledges that the evidence is circumstantial, the evidence that we can actually find, shows that both Federalist and Antifederalist believed that the right to possess arms was to effectuate insurrection against a potentially tyrannical national government, not fear of slave rebellion.  The distribution of requests for a right to keep and bear arms is contrary to a fear by slave states of rebellion.

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[1] Adjunct History Faculty, College of Western Idaho. Mr. Cramer is the author of CONCEALED WEAPON LAWS OF THE EARLY REPUBLIC: DUELING, SOUTHERN VIOLENCE, AND MORAL REFORM (1999) (cited by Justice Breyer in McDonald v. City of Chicago, 130 S. Ct. 3020, 3132 (2010) (Breyer, J., dissenting)), and ARMED AMERICA: THE REMARKABLE STORY OF HOW AND WHY GUNS BECAME AS AMERICAN AS APPLE PIE (2006), and co-author of, among other articles, Clayton E. Cramer & Joseph Edward Olson, What Did “Bear Arms” Mean in the Second Amendment?, 6 GEO. J.L. & PUB. POL’Y 511 (2008) (cited by Justice Scalia in District of Columbia v. Heller, 554 U.S. 570, 588 (2008)), and Clayton E. Cramer, Nicholas J. Johnson & George A. Mocsary, “This Right is Not Allowed by Governments that Are Afraid of the People”: The Public Meaning of the Second Amendment When the Fourteenth Amendment Was Ratified, 17 GEO.MASON L. REV. 823 (2010) (cited by Justice Alito in McDonald, 130 S. Ct. at 3039 n.21, 3041 n.25, 3043). Mr. Cramer’s website is CLAYTON CRAMER’S WEB PAGE, http://www.claytoncramer.com (last visited Aug. 20, 2013).

[2] Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis Law Review 315,

[3] Id., at 372.

[4] 2 Elliott’s Debates 423.

[5] Elliot, 3:59-60.

[6] Luther Martin, Letters of Luther Martin, 5, in The Maryland Journal, March 28, 1788, in Paul Ford, ed., Essays on the Constitution of the United States, (New York: Burt Franklin, 1892), 376.

[7] James Madison, Federalist 46.

[8] Alexander Hamilton, Federalist 29.

[9] Webster, 43, in Paul Ford,  ed., Pamphlets On The Constitution of the United States, (1888), 56.

56.

[10] Veit, Helen, Bowling, Kenneth R., & Bickford, Charlene Bangs, ed., Creating The Bill of Rights: The Documentary Record from the First Federal Congress , 4:4, 4:12-26. (1991)

[11] “The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constitutents”, in John Bach McMaster, ‎Frederick Dawson Stone, Pennsylvania and the Federal Constitution 422 (1888).

[12] Clayton E. Cramer, Black Demographic Data: A Sourcebook (1997), 70.

[13] Zilversmit, The First Emancipation: The Abolition of Slavery in the North 127-31 (1967).

[14] Bickford & Veit, 4:14-15.

[15] Cramer, 67.

[16] Arthur Zilversmit, 117.

[17] Bickford & Veit, 4:13-15.

[18] Bickford & Veit, 4:20.

[19] Cramer, 106.

[20] Zilversmit, 148-50, 182, 212-3.

[21] Debates of the Massachusetts Convention of 1788 (Boston: 1856), 86-87, quoted in Robert Allen Rutland, The Birth of the Bill of Rights 1776-1791, (1955), 147.

[22] Zilversmit, 117.