So-called Constitutional originalists like to say that our understanding of any given clause in the Constitution must be rooted in its original intent, what an average reasonable person at the time of its writing would say it meant and was intended to accomplish. So what does this mean when it turns out the original intent is disgraceful, and in fact would be illegal today? Should that affect our sense of the clause in question?
Via
Brad Delong's economics blog, we're directed to a website called
The Smirking Chimp, and from that to a body of historical research that indicates that the original intent of the Second Amendment was to help preserve slavery by guaranteeing southern states the ability to terrorize their slaves.
Much of the research quoted was done by Carl T. Bogus of Roger Williams University, whose full paper on what he calls "the hidden history of the Second Amendment" can be downloaded
here. He documents that, in order to get Virginia to ratify the Constitution, the Amendment was written to guarantee that abolitionist forces in Congress would never be able to disarm the southern militias whose near-exclusive function was to act as slave patrols to prevent "servile insurrection."
From the introduction of slavery into the colonies in the 17th century right up to the Civil War, the slaveowner's biggest fear was of being murdered in his bed during a slave revolt. Sensibly enough: Bogus cites research indicating there were around 250
slave insurrections throughout the South during colonial times. At the time of the ratification debates, the biggest and best-known was in 1739 South Carolina, when and where a group of 20 blacks broke into a store and stole weapons and gunpowder. Bogus: "They decapitated the two storekeepers, displaying their heads on the front steps, and then headed south, sacking and burning homes and killing whites on the way. They marched while flying banners, beating drums, and calling out "Liberty!" to attract more slaves to the rebellion." Eventually they numbered near 100, and were only subdued after fighting two full-fledged battles with mounted militiamen. After the first, black captives were beheaded and their heads hung from mileposts along the road as a warning to other slaves. Most of those who had escaped were tracked down a week later by another militia company and wiped out.
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| Newspaper woodcut following Nat Turner's revolt, 1831 |
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In many areas of the South, black slaves outnumbered whites. Even where that wasn't the case, the ratio of slaves to total population was huge: while the Constitution was being debated, 44% of Virginia's population was enslaved. How do you control an oppressed people in your midst when their numbers approach or exceed yours? Basically, you run a police state. From early colonial days, a feature of Southern life was organized slave patrols of armed white men who searched slave quarters without notice, whipped slaves found off the plantation without permission, and prevented blacks from gathering in groups of three or more. The formation after the Civil War of terrorist groups like the Ku Klux Klan was simply an extension of the pre-war slave patrols.
By the mid-1700s, the slave patrols had been put under the auspices of the state militia. The Smirking Chimp cites Sally Haden's book
Slave Patrols: Law and Violence in Virginia and the Carolinas to the effect that virtually all men between 18 and 45--not even physicians or ministers were exempted--were required to serve in the militia, which is to say on slave patrols. One reason the 1739 uprising was quelled promptly was that the white men attending Sunday services at a nearby church were, as required by law, armed.
The myth of the citizen militia during the Revolution is that it was an important element in defeating the British--patriot Minutemen rushing from their homes to battle redcoats, and all that. Bogus points out that in fact a number of Southern states refused even to contribute any militia to the war effort, for the perfectly sound reason that doing so would leave their homes unprotected against slave uprisings. And on at least one occasion George Washington refused to accept the offer of militiamen, as his experience had taught him that they were too undisciplined to be useful in battle: they tended to desert. At the battle of Camden, militia from Virginia and North Carolina, though outnumbering the entire British force, fled from the field without firing a single shot. No, what the citizen militia was good at was terrorizing slaves, and little else.
How does the Second Amendment figure into this? Well, the Declaration of Independence and the Revolution had inspired a wave of abolitionism in the North, where slavery was not all that economically important. Between the adoption of the Declaration and the drafting of the Constitution, half the slave states north of the Mason-Dixon line had passed emancipation laws; the rest followed suit by 1804. Things were different in the South. During ratification debates, Southerners wanted protection from the possibility that Northerners would use the Constitution to undermine slavery by disarming the slave patrols. Virginia delegate George Mason, called the Father of the Bill of Rights, and owner of 300 slaves,
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| No apparent sense of irony or self-awareness |
had refused to sign the Constitution when it was drafted in Philadelphia. Among his reservations was his fear that Article One, Section Eight of the proposed Constitution would empower Northerners to strike against slavery by effectively eliminating the slave patrol militias. He told the ratification convention:
The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless--by disarming them. Under various pretenses, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them . . .
Patrick Henry, greatest orator of the Revolutionary era and another Virginia delegate to the ratifying convention, agreed:
If there should happen an insurrection of slaves, [the states] cannot, therefore, suppress it without the interposition of Congress. . . . Congress, and Congress only, can call forth the militia. . . . I see a great deal of the property of the people of Virginia in jeopardy, and their peace and tranquility gone.
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| He feared certain others might take his same course. |
The Federalists needed Virginia's vote for ratification in order for the Constitution to come into effect. Nine of thirteen states had to vote yes. Eight had done so. Of the five holdouts, Rhode Island was a definite no, New Hampshire and North Carolina were considered doubtful, New York was unpredictable, and Virginia was on the fence. (In the event, New Hampshire became the ninth state to ratify, four days before Virginia, but that could not have been predicted at the time.) If ratification failed, the Constitution died, and the United States itself would perhaps dissolve. As part of the Bill of Rights required to secure Virginia's vote (and those of other states as well), James Madison agreed to an amendment answering the concerns of Mason and Henry. His first draft spoke in general terms of the "security of a free
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| Ratification votes and dates |
nation;" by the time it was adopted, this had been changed to the more-to-the-point "security of a free State." The security concern was of course not foreign invasion; the nation as a whole would undoubtedly act as one in any such case. Nor was it, as today's gun advocates pretend to believe, that citizens should be empowered to resist the government's tyranny--has there ever been a government that gave formal written permission for itself to be attacked? The security concern at the heart of the Second Amendment's original intent is that the captive Americans among us might rise up to claim their freedom.
The legacy of all this is that we today have been convinced we have no practical means of stopping crazy people from gunning down children.
