In efforts to undermine the Second Amendment, gun control advocates advance a variety of arguments claiming it does not confer an individual right to keep and bear arms and that it was ratified for reasons that make it morally illegitimate today.
Among these arguments is the claim that the Second Amendment was added to the Constitution for the sake of Southern slave states that relied on the militia to conduct slave patrols and put down potential slave insurrections and revolts.
That is the central thesis of an oft-quoted 1998 paper, The Hidden History of the Second Amendment, by law professor Carl T. Bogus. Aside from its explicit ideological underpinnings, the paper effectively claims to make one argument but with implications that go beyond any rational and logical extension. Both are rendered moot because implications he makes run afoul of the Ninth and Tenth Amendments.
The ostensible thesis is that James Madison’s motive for pushing the adoption of the Second Amendment was to assure Southern states that their militias used to conduct slave patrols would be protected from interference of one kind or another by the federal government.
There are an incredible number of glaring problems with this thesis.
First, for this thesis to be believable, the question of militia control and arming would have had to be solely a regional priority and not an issue outside of Southern slave states. Second, there almost certainly would have been either public statements or private correspondence to or from James Madison and others expressing the need for the Second Amendment to maintain local militia autonomy in the event of a slave revolt or uprising. Finally, states that had experienced prior slave revolts would have been pushing for it the hardest.
Instead, the concerns over the militia and the right to keep and bear arms came from states North and South, slave and free. The discussions about the proposed Constitution’s impact on slavery in the South during the ratification of the Constitution itself had nothing to do with the Second Amendment, nor did the amendment satisfy those concerns. And states that had had slave revolts made no demands for any amendment regarding militia control or the right to keep and bear arms.
It’s clear from the beginning of the paper that, to quote Sherlock Holmes, it’s a theory in search of facts that twists facts to suit a theory.
The first two-dozen pages or so don’t concern the history of the Second Amendment or the historical record, but instead focus on gun violence in America compared to other developed nations, the author’s frustration with the lack of federal gun control due to the Second Amendment, and his animosity toward gun rights groups that favor an individualistic interpretation of the Second Amendment.
When Bogus finally gets to the meat of his paper, he claims that protecting the individual right to keep and bear arms was “not the principal reason the Founders created the Second Amendment.” Instead, he insists it was to assure Southern states would not be vulnerable to slave revolts or insurrections due to federal interference with local militias used to quell them.
The trouble is, there’s no solid evidence to support this. His assertions are rooted in speculation, conjecture, or weak attempts to tie separate issues together.
For example, he notes that William Smith of South Carolina wrote a letter advocating for a bill of rights due to his opposition to the 20-year ban on the slave trade. But this conflates the entire Bill of Rights with one provision – the Second Amendment specifically. The implementation of a slave trade ban had nothing to do with local militia, nor did the Second Amendment affect it in any way.
Fundamentally, the paper frames antifederalist opposition to and apprehensions about the Constitution as primarily due to its potential impact on the institution of slavery. Bogus implies that the antifederalist stance regarding militia, a standing army, and firearm ownership was at its core not based on preserving federalism, but on slavery.
The paper’s case is even further harmed when the author brings up issues that are not relevant to the discussion. Bogus also misconstrues the debates. As one example, Bogus delves into the ineffectiveness of local militia to combat the British military during the War of Independence. He implies that arguments made by antifederalists championing local militia over a permanent standing army for fear of tyranny were insincere. Bogus writes that militia was the “best defense against slave insurrection but practically useless against a professional army.”
Yet, that’s not what they argued.
Antifederalists including George Mason, Patrick Henry, and others were fearful of a standing army during peacetime, not war. They were also afraid of a permanent standing army leading to a military dictatorship that would centralize power, in part by either consolidating or abolishing local militia that might resist it. Congress raising an army to ward off invasion or in defense of the nation, only to disband it as it had done during after the War of Independence following the Treaty of Paris, was not the basis of their opposition.
Another flaw in Bogus’ argument is that the fear of a standing army and the disarming of civilians was not confined to Southern slave owners like Mason and Henry.
For instance, although slavery was still legal in the state, New York was already on its way toward banning it. By 1781, it voted to free slaves that had fought in the War of Independence and later voted for gradual abolition by the end of the century. With its ratification of the Constitution, the state convention proposed several amendments that included the following:
That no appropriation of money in time of peace for the support of an army, shall be by less than two thirds of the representatives and senators present.
That each state shall have power to provide for organising arming and disciplining its militia, when no provision for that purpose shall have been made by Congress and until such provision shall have been made; and that the militia shall never be subjected to martial law but in time of war rebellion or insurrection.
New Hampshire ended slavery in 1783 and went on to ratify the Constitution but with 12 proposed amendments.
Among them:
That no standing Army shall be Kept up in time of Peace unless with the consent of three-fourths of the Members of each branch of Congress, nor shall Soldiers in Time of Peace be quartered upon private Houses without the consent of the Owners.
Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.
Massachusetts Congressmen Eldridge Gerry echoed these arguments during the congressional debates about the Second Amendment, saying:
“What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late revolution.” [Emphasis added]
Gerry was not only a northerner hailing from a free state, he signed both the Declaration of Independence and Articles of Confederation and refused to sign the Constitution because it did not include a Bill of Rights.
Further, Bogus’ interpretation struggles to explain how Southern states like South Carolina and Georgia that relied on the militia to enforce slave laws both ratified the Constitution, not only without a stipulation that amendments be adopted, but the amendments they suggested had nothing to do with militia.
The first state to use militia for slave patrols was South Carolina. At its ratifying convention held just prior to Virginia’s, the objections against the Constitution over slavery did not concern the disarming or nationalization of militia. Chief objections concerned a ban on importing slaves.
This is significant because South Carolina had been the scene of the Stono Rebellion, also known as Cato’s Rebellion. The largest slave revolt in the state’s history, it took place in 1739 and killed 25 whites and 50 blacks.
The fact that South Carolina raised no qualms about the loss of local militia control during the convention and made no demands about militia in its proposed amendments despite past slave revolts within living memory gains further significance when you consider that Virginia up until that point had never even experienced an actual slave revolt.
As Mary Miley Theobald at Colonial Williamsburg writes (bold emphasis added):
“There was in colonial Virginia a relentless fear of slave uprisings. Rumors and reports fed the anxieties of a slaveholding society, and some of them were founded in fact. But there was no organized slave uprising in Virginia until well into the nineteenth century. All the plots were uncovered or betrayed before they could be carried out. Luck—bad for the slaves, good for the masters—played a role, but there were other factors.”
Georgia’s convention had no transcript, and the focus of Bogus’s footnotes on it offers no proof that there was fear of losing local militia control needed to quell slave revolts.
In conclusion, it is damning that numerous northern states adamantly requested amendments regarding private firearm ownership as well as militia, yet key Southern slave states that relied on the militia to maintain that “peculiar institution” did not. This undercuts Bogus’s thesis and renders his conclusions more than doubtful.
TJ Martinell | The Tenth Amendment Center
