The Forgotten Truth Of How Slavery Shaped The 2nd Amendment
Part 3 of a Rantt Series on gun violence in America.
It sometimes seems that the debate over the meaning of the Second Amendment has been going on since the moment the Amendment was ratified. It has not. The standoff between gun control advocates and gun “rights” advocates dates only to the 1970s. Even into the later 20th century, there really was no debate about whether the Second Amendment created an individual right to keep and bear arms.
The Second Amendment is not as easily understood as the other nine amendments that form the Bill of Rights. The others are clear to us: Congress cannot make laws establishing a religion or prohibiting the exercise of one. Congress cannot abridge freedom of speech or of the press, prohibit people from peaceable assembly, or prohibit people from petitioning the government for redress of grievances. Soldiers cannot be quartered in citizen’s homes without consent in time of peace, and in time of war only in a prescribed manner. The government cannot engage in unreasonable search and seizure of persons or property, and warrants allowing such searches and seizures must not be issued unless they are specific and supported by probable cause. And so on.
Those Amendments are easy to translate into plain English. We know what they mean upon first reading, generally. The Second Amendment is much more mysterious, especially to those of us living in a new-millennium world.
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.
It is a single sentence with three commas. Yet we are in the midst of a furious debate over what it actually means. One interpretation gives it the noble meaning that we expect from our Founders in balancing the powers of nation and state. That interpretation is supported by a less pretty picture of the Founders-as-slave-owners. The alternative interpretation advocated by “gun rights” activists seems to turn the Second Amendment on its head.
What Is A Militia?
In the context of the U.S. Constitution, the word “Militia” is the key to understanding the Second Amendment. The Second Amendment was adopted as a crucial part of a scheme that would provide for the defense of the new nation, but avoid a standing army controlled by the federal government. Article I, Section 8 of the Constitution gave Congress the power to “raise and support Armies,” but limited appropriations for that use to no more than two years. To supplement this power to raise armies, Congress was given the power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”
From where would the Militia come? From the States. While the members of the militia were under the command of the federal government, Congress was given the power to “provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.” But the appointment of officers and the training of the Militia in accordance with federal regulation was reserved to the States, and when members of state militias were not called upon to serve the nation, they were governed by state regulations.
A Militia was not a new concept when the Constitution and the Bill of Rights were drafted. Most colonies had a militia. In April 1775, a colonial militia of 70 men began the American Revolution, meeting 700 British at Lexington, Massachusetts—during which confrontation someone fired the “shot heard round the world.” The Continental Army was not established until June 1775. Militias continued to fight as part of that Army. In fact, George Washington, tasked as their general, complained in 1776: “I am … disturbed at the conduct of the militia, whose behavior and want of discipline has done great injury to the other troops[;] who never had officers, except in a few instances, worth the bread they eat.”
After the Revolution, state militias were maintained under the Articles of Confederation, and they continued to be maintained when the Constitution was ratified. The state militias were of recognized importance because if there were no such militias, the power granted to Congress for calling forth the Militia to execute federal laws, suppress rebellion and repel invasions would have been meaningless. The Second Amendment also offered a degree of assurance that the States could keep themselves secure from federal encroachment by recognizing the right of state militias to defend their states.
The Second Amendment never considered the right of individuals as individuals. It considered only the right of individuals in their capacity as members of a state militia. The first half of the Amendment was the important part: “A well regulated Militia, being necessary to the security of a free State.” The second half of the Amendment simply ensured that State Militia, to which the first half referred, could be maintained by prohibiting the federal government from infringing on state-granted citizen rights to keep and bear arms.
How can we be sure of that? We can be sure because there was a less wholesome reason for some states to agitate for the Second Amendment.
Slavery Was At The Center Of The 2nd Amendment
When the delegates from each State reached the Constitutional Convention of 1787, they expected to address the major flaw of the Articles of Confederation—that each state was sovereign, with no centralized government over all of them. James Madison of Virginia had already drafted what was referred to as “The Virginia Plan,” proposing bicameral legislation with representatives based on population. The Virginia Plan was not adopted wholesale, but parts were accepted and it formed the basis for what became the U.S. Constitution. The delegates reached the right balance between small states and large states, and the three branches of government, and the new document was sent out for ratification by each State.
Only nine States were required to vote in favor of ratification for the Constitution to become law. Nevertheless, it was recognized that two states were particularly important to the health of the United States: New York, and Virginia. They were the most populated and wealthiest. If they did not sign on, the country would be divided into pieces: southern states, mid-Atlantic states, and New England states. Some states did not feel that a Bill of Rights was necessary (the Federalists). Others believed strongly that there should be such a Bill (the Anti-Federalists). Thomas Jefferson urged Madison to draft a Bill of Rights.
The Anti-Federalists were concerned about restricting federal power. The provision giving Congress the power to call up the Militia was especially of concern to particular states. Virginia was one. When the Virginia Ratifying Convention began in 1788, it became clear that the state’s ratification of the Constitution would be conditioned on ratification of certain amendments. The Second Amendment was crucial. It was intended to guarantee that Congress could not call upon the state militia and then use some other Constitutional power to subsume that militia.
The Virginians were slave-owners. Jefferson had inherited 175 slaves and had purchased a few more. Henry ultimately had 76 slaves. Madison had dozens of slaves. Militia was necessary because from them, “slave patrols” were formed to keep order. Virginians also wanted to avoid what had happened during the Revolutionary War: slaves were invited to join the Continental Army and thereupon became free. Henry even feared that abolitionists would find a way to use the Constitution to manumit all slaves. “In this state,” Henry emphasized, “there are two hundred and thirty-six thousand blacks, and there are many in other states.” It, therefore, was of paramount importance that State rights to maintain militias unregulated by the federal government be included as an amendment, if Virginia were to ratify the Constitution.
So the Second Amendment was born. Not to protect individual rights from encroachment, but to guarantee states the right to keep armed militia free from federal interference, in order to maintain control over black slaves. Not the noble motivation one might have hoped for. But the truth about the need for a state Militia and the intent of the Second Amendment.
The history of militia thereafter was not eventful. In 1792, the Militia Act provided the President with the power to call up the state militia closest in proximity to a conflict. It proved to be ineffective. During the War of 1812, President James Madison called for the governor of Massachusetts to send his state militia for use outside his state. The governor refused, as did those of Connecticut, Rhode Island, and Vermont.
An optimistic President Abraham Lincoln called up 75,000 militiamen from the states for a three-month tour in 1861, to assist an army of 40,000 “regulars” in protecting Washington, D.C. and blockading southern ports. Many of those militiamen were employed disastrously at Bull Run. Throughout the Civil War, spurred on by sheer enthusiasm, state militia, and less organized groups headed out to join the fray, either to protect their states or to fight for the Union or the Confederacy.
In 1862, the Second Confiscation and Militia Act empowered the president “to employ as many persons of African descent as he may deem necessary and proper for the suppression of this rebellion … in such manner as he may judge best for the public welfare.” Black militias formed and prepared to support the Union. New Orleans blacks formed the First, Second and Third National Guard units, which became the 73rd, 74th, and 75th U.S. Colored Infantry. Kansas blacks formed the First Kansas Colored Infantry, which became the 79th U.S. Colored Infantry. The First South Carolina Infantry, African Descent became the 33rd U.S. Colored Infantry.
After the Civil War ended and Reconstruction began, things got dicey. Texas, Louisiana, Arkansas, Mississippi, Alabama, Florida, South Carolina, North Carolina, and Virginia were placed under the direct control of the U.S. Army. The U.S. Army maintained a presence in former Confederate States to ensure compliance with the law, but generally, the states were left alone to address their new situation. Enthusiasm for Reconstruction began to quickly wane in the North, and even before federal oversight ended, southern states returned to old ways of policing their populations of new freedmen.
Reconstruction: Southern Militias Act Badly And The U.S. Supreme Court Weighs In On the Second Amendment
Back in the north, in 1871, Union veterans Colonel William C. Church and General George Wingate founded the National Rifle Association, for the purpose of promoting marksmanship and sport shooting. The NRA at the time did not hold the view that there should be an unrestricted individual right to keep and bear arms. It simply wanted to improve safety and efficiency.
During Reconstruction, state militia became involved in reasserting control over the newly enfranchised blacks, and trying to disenfranchise and restrict their rights. White supremacist groups terrorized blacks throughout the Southern states. If Reconstructionists abolished state militia, the former Confederates turned to white supremacist groups such as the Ku Klux Klan. In some places, black militias were organized to oppose the KKK. Things got worse from there. Especially in Louisiana.
Southern Democrats were mostly former slave owners. The federal government and blacks were largely Republican. In 1872 a gubernatorial election in Louisiana led to armed conflict. President Grant sent federal troops, while southern whites formed an insurgent paramilitary group called the White League. Concerned that Democrats might attempt to seize control of an evenly split region of blacks and whites, a black militia took control of the courthouse in Colfax, Louisiana on April 1873. A mob of 150 whites, former Confederates and members of the KKK, arrived.
The massacre spread to blacks beyond the 50 that had been defending the courthouse. Three whites were killed, while 120 to 150 blacks were killed. 50 of the blacks were killed while prisoners.
The Colfax Massacre led to what is considered the first important U.S. Supreme Court case considering the Second Amendment: United States v. Cruikshank (1875). The Cruikshank opinion provides a surprising lack of information regarding the massacre involved, or even the precise nature of the claims raised, but analyzes the Second Amendment, and the Fourteenth Amendment (1868). The Court noted that in the U.S., people “are subject to two goverments”—state, and federal. It expressly stated that the Second Amendment had “no other effect than to restrict the powers of the national government.” Significantly, it did not find that the Second Amendment created any federal individual right to bear arms. The Cruikshank Court also found that while the Fourteenth Amendment prohibited states from depriving its citizens of life, liberty, or property, without due process of law, the Amendment added “nothing to the rights” of one citizen against another citizen. The Court threw the protection of its black citizens on to the state of Louisiana.
In 1877, after President Rutherford B. Hayes took office, Reconstruction was effectively over. Hayes withdrew federal troops to allow the states to govern themselves. The long era of Jim Crow inevitably followed.
In another Second Amendment case, Presser v. Illinois (1886), the Court examined a state provision making it unlawful for anyone other than regular organized volunteer state militia or U.S. troops to form a military band, drill, or parade, unless granted a license from the governor. Presser, a member of a citizen militia rather than the state militia, claimed that the statute violated his Second Amendment rights. The Court stated that the Second Amendment placed a restriction only on the federal government.
A lot of current Second Amendment debate centers on the idea that militias no longer exist. The Militia Act of 1903 began to separate state militias into organized and unorganized militias. Organized militias were a formalization of the kind of militia on which the U.S. Army wished to be able to rely: regulated, trained, and generally up to the standard of regular army units. Funding for equipment and training encampments was provided by the federal government. In exchange, the organized militia had to meet Army regulations and was subject to being called up for nine months at a time by the U.S. President. The National Defense Act of 1916 expanded the regulations to which the organized militias were subject and the circumstances in which they could be federalized. At that point, the units became the National Guard reserve force it is today.
But the unorganized militias did not vanish. Whether some militia groups simply did not want to meet the standards established by the U.S. under the Militia Act of 1903, or some states wished to keep their own militia for use within their states in case of need, many states have statutes providing for unorganized militias even today. As of 2011, at least 23 states still had militias, known as state defence forces (SDF). They range from state military, state guards, state militias, or state military reserves, and the state governor is their commander-in-chief. These “unorganized” but trained militia exist in a time of peace to serve within their state, and support the National Guard should it be called to their state. Even more, states still have active statutes for purely state militia, though they may be disused. The “Militia” of the Second Amendment has neither been entirely absorbed into the National Guard nor replaced by it.
That state defence forces, subject only to state regulation, exist in half of the U.S. means that the “well-regulated Militia, being necessary to the security of a free State” to which the Second Amendment refers is absolutely not a dead issue. Archaic-sounding as it may be, the word “Militia” is not an obsolescence that permits (or requires) the first half of the Second Amendment to be ignored for interpretation of the Amendment to be possible. The Second Amendment can, in fact, be interpreted today to mean exactly what it meant when James Madison first put the words to paper: the federal government is prohibited from infringing on the rights to keep and bear arms that a state may grant to its citizens in the course of maintaining a state militia.
Read Part 1 Of This Series: A Bird’s Eye View Of Gun Violence In America
Read Part 2 Of This Series: Defining The Problem: Gun Proliferation And Under-The-Radar Circulation In America