University of California at Davis Law Review
31 (1998): 309.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
THE HIDDEN HISTORY OF THE SECOND AMENDMENT
Carl T. Bogus *
TABLE OF CONTENTS
INTRODUCTION .............................................................. 311
I. THE HIDDEN HISTORY OF THE
SECOND AMENDMENT....................................................322A. Showdown in Richmond ....................................... 322
B. Anti-Federalist Strategy ....................................... 327
C. Southern Fear ...................................................... 328
D. Slave Control ....................................................... 335
E. The Militia ............................................................ 337
F. The Richmond Convention ................................... 344
G. Virginia's Proposed Declaration of Rights .......... 354
H. Madison's Political Career .................................. 359
I. The Drafting of the Second Amendment .............. 362
[Page 310]
J. Legislative History ................................................ 369
K. The Absence of Direct Evidence .......................... 372
II. THE MYTH OF AN ANGLO-AMERICAN RIGHT ..... 375
A. Malcolm's Thesis .................................................. 376
B. The Glorious Revolution ....................................... 379
C. The Declaration of Rights of 1689 ....................... 382
III. THE MYTH OF AN INSURRECTIONIST RIGHT ...... 386
A. Modern Insurrectionist Theory ............................. 386
B. Were the Founders Insurrectionists? .................... 390
IV. THE MYTH OF THE SELF-APPOINTED MILITIA ... 405
CONCLUSION .................................................................... 407
[Page 311]
For the great enemy of the truth is very often not the lie ¾ deliberate, contrived, and dishonest ¾ but the myth ¾ persistent, persuasive, and unrealistic. Too often we hold fast to the cliches of our forebears. We subject all facts to a prefabricated set of interpretations. We enjoy the comfort of opinion without the discomfort of thought.
-John F. Kennedy[1]
INTRODUCTIONThe Second Amendment is unique. No other constitutional provision has lived so small a life in the law while looming so large in the realms of policy, politics, and popular culture. Among the Bill of Rights, only the Third Amendment, which prohibits the quartering of troops in homes, has received less judicial attention.[2] Annotations of all the cases that have dealt with the Second Amendment take up a mere ten pages in the United States Code Annotated, compared, for example, to 1452 pages for First Amendment cases.[3] In the history of the republic, the United States Supreme Court has handed down only three opinions dealing directly with the Second Amendment,[4] the last in 1939,[5] and no federal statute or administrative regulation has ever been invalidated on Second Amendment grounds.
Based on this lack of activity, one might expect the Second Amendment to be something of a constitutional relic, obscure [Page 312] and forgotten. That is hardly the case. The right to bear arms is invoked constantly on the political stump, the op-ed page, the radio talk show, and the floors of Congress.[6] Politicians of all persuasions consider it essential to pledge fealty to the right to bear arms, often in extravagant terms.[7] According to Senator Orrin Hatch, who currently chairs the Senate Judiciary Committee, the right to bear arms is the "right most valued by free men."[8] While most Americans may not consider the right to bear arms more precious than freedom of speech or religion, few constitutional provisions are more familiar to the public-at-large. One national poll showed that more Americans know that the Constitution contains a right to bear arms than know that it guarantees a right to remain silent if accused of crimes.[9]
There can be little doubt that the Second Amendment has a powerful impact on public policy. The United States is the only industrialized nation in the world in which tens of thousands of citizens are killed or wounded by guns each year.[10] [Page 313] Consequently, the United States is far and away the leader in criminal homicide in the industrialized world.[11] Efforts to reduce handgun violence through legislation is by no means a hopeless cause. Research demonstrates that stringent handgun regulation can dramatically reduce murder, robbery, and suicide;[12] yet except for modest legislation, such as the Brady Act,[13] the United States neither has nor is seriously considering an effective system for regulating handguns in the United States.[14] The Second Amendment is part of the reason that the United States tolerates a level of carnage and terror unparalleled [Page 314] in any other nation at peace.[15] The public more or less assumes that the Second Amendment prohibits the kind of gun control regulations that effectively protect public safety in other countries.[16]
Exactly what the parameters of the right to bear arms are and why the Founders considered it sufficiently important to include it in the Bill of Rights may seem a mystery shrouded by mists of time. The words of the Second Amendment are familiar to many Americans: "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."[17] Americans have an image of the militia ¾ minutemen rushing with muskets onto the greens at Lexington and Concord to fire the "shot heard around the world."[18] The fact that colonists were armed helped make the Revolution possible. Indeed, it was a British plot to confiscate American militia weapons that propelled Paul Revere on his famous ride.[19] These images blend with other visions of colonial America. Many believe guns and survival went hand-in-hand in early America ¾ that settlers depended upon firearms to defend themselves from Indians, thieves, and wild animals, as well as to hunt for food.[20] Some assume that the Founders incorporated the right to bear arms in the Bill of Rights because an armed citizenry had been important to security in colonial America and essential to throwing off the yoke of British oppression.[21]
Much of this is myth. It is not myth in the sense that the images are wholly divorced from historical truth. Rather, myths can be powerful and sinister because they blend fact and fiction. [Page 315] Myths do not so much misrepresent as mislead, not so much concoct as distort. That is the case with the Second Amendment. When the Bill of Rights was adopted, some believed that the right to bear arms was important to defend and feed citizens and their families or to resist foreign aggression and domestic tyranny.[22] But, as this Article will show, that was not the principal reason that the Founders created the Second Amendment.
The story of the Second Amendment is both more complex and more interesting than previously understood. It is a tale of political struggle, strategy, and intrigue. The Second Amendment's history has been hidden because neither James Madison, who was the principal author of the Second Amendment, nor those he was attempting to outmaneuver politically, laid their motives on the table.
Before describing this hidden history, I wish to briefly explain why it is particularly important for scholars and courts to understand this hidden history and why this history will encounter great resistance. While in the past scholars have not ignored the Second Amendment quite as much as the courts, even within academic circles it was a reasonably dormant topic. Then about a decade ago, things changed; suddenly there was an explosion of academic interest in the Second Amendment. The Second Amendment became the subject of a constant stream of books,[23] articles,[24] conferences,[25] symposia,[26] and even entire [Page 316] organizations.[27] This is not the result of mere chance; it is part of a concerted campaign to persuade the courts to reconsider the Second Amendment, to reject what has long been a judicial consensus, and to adopt a different interpretation ¾ one that would give the Amendment judicial as well as political vitality and would erect constitutional barriers to gun control legislation.
The Second Amendment has been the subject of so little judicial activity because courts have unanimously adopted what is generally referred to as the "collective rights" theory.[28] According to this view, the Second Amendment grants people a right to keep and bear arms only within the state-regulated militia. In contrast, those who advocate an "individual rights" theory believe that the Second Amendment grants individuals a personal right to keep and bear arms. This model has long been advocated by the firearm industry, shooting organizations, and political libertarians.[29] However, state[30] and federal courts[31] consistently ad-[Page 317] hered to the collective rights interpretation, and it became clear that further head-on assaults would likely be counterproductive. The gun lobby apparently decided to suspend efforts to have the courts reconsider the Second Amendment until a body of secondary authority could be developed to support its position.
For a period of time, legal challenges to gun control legislation studiously avoided the Second Amendment. The challenge to the Brady Act, for example, was made exclusively on Tenth Amendment grounds.[32] Meanwhile, the gun lobby pursued an aggressive campaign to build a body of favorable literature. An arm of the National Rifle Association ("NRA") dispensed sizable grants to encourage writing that favored the individual rights model, and even stimulated student articles with a Second Amendment essay contest.[33] Gun rights advocates then decided that the project had borne enough fruit to return to the courts. In an amicus brief asking the Court to grant certiorari and reconsider the right to bear arms in its 1996-97 term, a group calling itself Academics for the Second Amendment told the Court that thirty-seven of forty-one law review articles addressing the topic since 1980 endorse the individual rights position.[34] [Page 318]
The bulk of this writing has been produced by a small band of true believers who belong not merely to the individual rights school of thought but a particular wing commonly called "insurrectionist theory."[35] The leader of this band is Stephen P. Halbrook,[36] who, with the support of tens of thousands of dollars in NRA grants,[37] has written no less than two books and thirteen law review articles advocating this particular theory of the Second Amendment.[38] Insurrectionist theory is premised on [Page 319] the idea that the ultimate purpose of an armed citizenry is to be prepared to fight the government itself. Halbrook believes that "the Second Amendment's framers anticipated a force of the whole armed populace, not a select group, to counter inroads on freedom by government,"[39] and that they intended "to guarantee the right of the people to have .their private arms' to prevent tyranny and to overpower an abusive standing army or select militia."[40] Such writings conjure up a romantic image of the colonial militia: rugged individualists who answer to no one but their own conscience and stand ready to protect their homes, families, and communities from all manner of threats, both foreign and domestic. Because they serve no master other than their own sense of patriotism, they cannot be manipulated or commandeered as might a government controlled force. Because they are armed, they have the means, as well as the will, to resist tyranny.
Despite a surface allure, Halbrook paints a dismal picture. It is animated by a profound mistrust not only for government, but for constitutional democracy. For Halbrook, all of the constitutional mechanisms ensuring that government power will not be misused ¾ the division of power between the federal and state governments, the separation of powers among the three branches of government, a bicameral legislature, an independent judiciary, freedom of speech and the press, and a civilian Commander in Chief ¾ are inadequate.[41] He is afraid the constitutional structure will fail. When Halbrook speaks of an armed citizenry as necessary to "counter inroads on freedom by government"[42] and "prevent tyranny and to overpower an abusive standing army,"[43] he is arguing that the constitutionally elected [Page 320] government will itself become the enemy. In short, Halbrook believes both that the ultimate guarantee of freedom must come from the barrel of a gun and that the Founders believed this as well.
Insurrectionist theory may be paranoic, anarchistic, and anti-democratic, but it is a theory that has won some important converts. While, as a general matter, mainstream scholars have only a cold disdain for the work of insurrectionist theorists,[44] at least three prominent constitutional scholars ¾ Sanford Levinson of the University of Texas,[45] Akhil Reed Amar of Yale,[46] and William Van Alstyne of Duke[47] ¾ have recently joined the insurrectionist school, giving it a respectability it did not previously enjoy. "This was a frivolous, crazy position, and it no longer is anymore," Cass R. Sunstein remarked.[48]
The campaign to have the Supreme Court reconsider the Second Amendment may be winning converts within the Court [Page 321] as well. In his concurring opinion in Printz v. United States,[49] Justice Thomas took note of the "growing body of scholarly commentary" supporting the view that the Second Amendment grants an individual right.[50] Justice Thomas hinted that he agrees with the individual rights position and suggested that "[p]erhaps, at some future date, this Court will have the opportunity to determine" the meaning of the Amendment.[51]
This Article challenges the insurrectionist model. The Second Amendment was not enacted to provide a check on government tyranny; rather, it was written to assure the Southern states that Congress would not undermine the slave system by using its newly acquired constitutional authority over the militia to disarm the state militia and thereby destroy the South's principal instrument of slave control. In effect, the Second Amendment supplemented the slavery compromise made at the Constitutional Convention in Philadelphia and obliquely codified in other constitutional provisions.[52]
Part I of this Article relates the hidden history of the Second Amendment. In many ways, the story begins in June 1788 at a convention in Richmond at which Virginia was to decide whether to ratify the Constitution of the United States. However, before relating the events at Richmond, Part I provides some background involving slavery, slave control, the militia, and the dynamics of the struggle between the Federalists and anti-Federalists as they headed toward a showdown in Richmond. Part I then describes political events occurring after Richmond which persuaded Madison to write a bill of rights, including the provision we now know as the Second Amendment.
Part II of this Article tells a different part of the story, one that occurred a hundred years before Madison wrote the Second Amendment. Insurrectionist theorists increasingly stress what they call the Anglo-American legacy of the right to keep and bear arms. They argue that the Second Amendment is a direct descendant of the English Declaration of Rights of 1689, which, they contend, granted an individual right to have arms as a [Page 322] check on governmental tyranny. Part II focuses on the Declaration of Rights, placing it and its right to have arms provision in the context of the British "Glorious Revolution." This Article does not quarrel with the premise that the Second Amendment was inspired by the Declaration of Rights. On the contrary, it tries to illuminate the parallels between the two provisions, showing that Madison wrote the Second Amendment to address a problem analogous to the one faced a century earlier by the authors of the Declaration of Rights. This Article argues that the insurrectionist interpretation of the Declaration of Rights is fundamentally flawed. An historically sound understanding of the Second Amendment's English heritage belies the proposition that the Second Amendment was intended to grant an individual right to keep or bear arms against governmental tyranny. Instead, the Amendment's English heritage provides further support for the hidden history of the Second Amendment.
Parts III and IV respond to opposing arguments. Modern insurrectionists claim the Founders as their own, offering many quotes from venerated figures of the early republic that appear to endorse the idea of the right to keep and bear arms against government tyranny. Part III takes up the question of whether the Founders were insurrectionists. Part IV deals briefly with the insurrectionists' claim that the word "militia," as used in the Second Amendment, means a militia composed of all able-bodied, adult citizens. The Article concludes by offering final thoughts on the implications of the Second Amendment's hidden history.
I. THE HIDDEN HISTORY OF THE SECOND AMENDMENT
A. Showdown in Richmond
The story of the hidden history of the Second Amendment begins in June 1788 at a convention, held in Richmond, to consider whether Virginia would ratify the Constitution of the United States. The Constitution had been a controversial document since its adoption in Philadelphia in September 1787.[53] [Page 323] Though the Federalists, who favored a stronger federal government, did not achieve all they desired, they were the perceived victors at the Constitutional Convention.[54] The anti-Federalists were now engaged in a campaign to stop the Constitution from being ratified.[55]
The anti-Federalists were skeptical, even bitter, about the ratification process. Some felt that the Philadelphia Convention had exceeded its authority, that the delegates should have interpreted their charge as one to modify the Articles of Confederation, not to create a radically different structure.[56] They were further irritated by the fact that the Constitution would become effective not by the unanimous consent of the Union's thirteen states but by the ratification of only nine.[57] Moreover, the state legislatures had been cut out of direct participation in the process; the Constitution would be put before state ratifying conventions rather than the state legislatures.[58]
From the moment the Convention proposed the Constitution, both sides had been engaged in a struggle over ratification. There was, of course, a scintillating debate of ideas. John Jay, James Madison, and Alexander Hamilton argued for ratification in a series of essays published in New York newspapers under the pseudonym "Publius," which today are collectively known as The Federalist Papers.[59] Meanwhile, anti-Federalists wrote essays opposing ratification. Those published under the names [Page 324] "Brutus,"[60] "Centinel,"[61] "John Dewitt,"[62] and "The Federal Farmer"[63] were among the most prominent.
The battles were not limited to an exchange of ideas, however. This was a no- holds-barred struggle, and the adversaries pressed every available strategic or tactical advantage. The following example gives a sense of the intensity of the struggle. The day after delegates to the Philadelphia Convention signed the proposed new Constitution, Federalists sought to have the Pennsylvania Legislature, which had been meeting upstairs at the Philadelphia State House while the Constitutional Convention was in session downstairs, vote to convene a ratifying convention in Pennsylvania two months hence.[64] Lacking the votes to defeat this proposal, the anti-Federalists sought to block the measure by failing to return after the noon recess, thereby preventing a quorum.[65] The legislative session was due to end the next day, and without a quorum there would be considerable delay before the Pennsylvania Legislature could consider the matter again.[66] The Federalists, capitalizing on the opportunity to create a sense of momentum by having Pennsylvania vote to convene a ratifying convention before the ink had dried on the proposed new Constitution, directed the sergeant of arms to fetch the missing members.[67] The sergeant located two ¾ just [Page 325] the number needed to complete a quorum ¾ escorted them against their will back to their seats in the State House, and barred the doors until the assembly voted by a narrow margin to convene a state ratifying convention.[68] For the anti- Federalists, this incident became a symbol of a Federalist campaign to steamroll the Constitution to ratification and heightened their resolve to resist.[69]
Nine months later, the fate of the Constitution and, thus, the United States was in doubt. Eight states had ratified the Constitution; only one more was needed. But there was not another state where ratification was certain or perhaps even likely. Rhode Island was a sure bet against ratification. So unenthusiastic had it been about a strong Union in which it would have little influence as a small state, Rhode Island had not even sent delegates to the Philadelphia Convention.[70] New Hampshire and North Carolina were also considered likely to oppose ratification.[71] Though it was perhaps more unpredictable, New York too seemed unlikely to ratify. New York's Governor George Clinton was opposed to ratification, and forty-six of the sixty-five delegates elected to the state's ratifying convention were committed anti- Federalists.[72][Page 326][Page 326]
This left only Virginia. The stakes were enormous. Not only was Virginia critical as a possible ninth state, but because it was the largest[73] and one of the most prosperous and respected states[74] ¾ the home of George Washington, Thomas Jefferson, and James Madison, among others ¾ it was by no means clear that the United States could succeed without it.[75] However, the prospect of Virginia's ratification was uncertain.[76] Madison would serve as the principal advocate for ratification, and no one understood the new Constitution better than Madison. Yet the opposition was equally formidable. Virginia's anti-Federalist delegates included two of the three men who had refused to sign the Constitution in Philadelphia ¾ George Mason and the state's eloquent Governor Edmund Randolph[77] ¾ as well as Patrick Henry, who was the most famous orator of the day.[78] [Page 327]
B. Anti-Federalist Strategy
The anti-Federalists were prepared to raise any argument that would win votes against ratification.[79] Their strongest ally was fear, and they raised a multitude of concerns about the potential calamities under the new Constitution.[80] Among these was one topic about which Virginia was already concerned and fearful ¾ the subject of slavery.[81]
One of Virginia's main concerns was that the federal government would abolish or directly interfere with the slave system. During the Constitutional Convention, Pierce Butler of South Carolina declared: "The security the Southn. States want is that their negroes may not be taken from them which some gentlemen within or without doors, have a very good mind to do."[82] Most believed that question had been settled in Philadelphia. The Southern states had made it plain that they would not join the Union if emancipation was an open issue and insisted that the Constitution protect the slave system.[83]
Though the Constitution did not do so expressly, it included a number of provisions directly related to slavery. Taken together, these provisions evidenced an agreement that neither Congress nor the Northern states[84] would attempt to interfere with slavery in the South. [85] Most believed this was sufficient. Charles [Page 328] Pinckney, one of South Carolina's delegates to the Constitutional Convention, went home and told the state house of representatives:
We have a security that the general government can never emancipate them, for no such authority is granted and it is admitted, on all hands, that the general government has no powers but what are expressly granted by the Constitution, and that all rights not expressed were reserved by the several states.[86]
Others wanted this principle expressly included in the Constitution and would soon seize upon the opportunity to include such a provision in a bill of rights. A little over a year later, for example, William L. Smith of South Carolina wrote a letter urging adoption of a proposed bill of rights because "if these amendts. are adopted, they will go a great way in preventing Congress from interfering with our negroes after 20 years . . . . Otherwise, they may even within the 20 years by strained construction of some power embarrass us very much."[87] The dominant view, however, was expressed by Pickney. Pickney believed that it was sufficiently clear that the new Constitution did not give the federal government any authority that it could legitimately employ to abolish slavery.[88] Although the federal government could not abolish slavery directly, however, there were ways in which it might undermine the slave system indirectly. For the South, this was a terrifying prospect.
C. Southern Fear
When the delegates to the ratifying convention met in Richmond on June 2, 1788, they knew that the Northern states were increasingly disgusted by slavery. The Revolution had changed [Page 329] everything.[89] Americans had embraced an ideology grounded on the premise that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness."[90] Although some sought to reconcile these beliefs with the continuation of the slave system,[91] for many, of course, that was impossible.
From the start, revolutionary rhetoric was turned easily and sharply against the South. "How is it that the loudest yelps for liberty come from the drivers of slaves?" Dr. Samuel Johnson had asked from England.[92] When Massachusetts effectively ended slavery in 1783, it did so in a way that must have been profoundly embarrassing to the slave states. Based on language in the state constitution quite similar to that in the Declaration of Independence ¾ "that all men are born free and equal" and "that every subject is entitled to liberty" ¾ the Massachusetts Supreme Court held that the state constitution, adopted three years earlier, effectively abolished slavery.[93] [Page 330]
Abolition fervor was running strongly in the North. Vermont, though not yet recognized as an independent state, abolished slavery outright in 1777.[94] Pennsylvania,[95] Rhode Island,[96] and New York[97] had all enacted gradual emancipation legislation. Some Northerners were not satisfied with gradual methods. Frustrated by the failure to end slavery immediately, prominent New York citizens formed the New York Society for Promoting the Manumission of Slaves.[98] The first two presidents of this group were John Jay and Alexander Hamilton.[99]
The South must have realized that although the Constitution did not grant the federal government the power to abolish slavery, it did not eliminate the desire to end the slave system. There were many in the North who continued to feel a moral imperative to bring slavery in America to an end.[100] Many in the South also railed against slavery, among them prominent Virginians such as Thomas Jefferson[101] and George Mason.[102][Page 331] But there was a difference. The instinct among Northerners was to emancipate slaves while Southerners tended to want to deport them.[103] This was not principally due to a more extreme racism in the South but to a legitimate fear about what would happen if it loosened its tight control over a black population that had long suffered horrible cruelties.[104] Even more chilling than emancipation was the prospect of continuing the slave system but weakening the white population's control over the slave population.[Page 332]
Southerners, therefore, had to worry that Northerners, whether morally committed to ending slavery or merely indifferent to the precarious situation in the South, might subvert the slave system indirectly. Even Virginians who wanted to end slavery had to tremble at such a prospect. Virginia was a state living in perpetual fear.[105] Fully forty-four percent of Virginia's total population was black,[106] and in some areas, particularly in the eastern part of the state, blacks constituted the majority. Whites were ever mindful that if the right opportunity presented itself, blacks might cut their heads off.[107] This is not hyperbole. On a Sunday morning in September 1739, for example, a group of about twenty blacks broke into a store near Stono, South Carolina for guns and powder.[108] They decapitated the two storekeepers, displayed their heads on the front steps, and then headed South, sacking and burning homes and killing whites on their way. They marched while flying banners, beating drums, and [Page 333] calling out "Liberty!" to attract more slaves to the rebellion.[109] According to one account, their numbers "increased every minute by new Negroes coming to them, so that they were above Sixty, some say a hundred."[110] But for a coincidence, the rebellion may have grown considerably larger and perhaps even succeeded.[111] By chance, the Lieutenant Governor of South Carolina rode within eyesight of the rebel group while he was on his way to Charleston with four other men.[112]
As best as events can be reconstructed, the Lieutenant Governor raced to the Presbyterian church in Wiltown, which happened to be in the midst of Sunday services, and assembled a contingent of white planters.[113] By four o'clock in the afternoon, somewhere between twenty and one hundred armed and mounted militiamen attacked the rebel group. About forty-four blacks and twenty-one whites died in the ensuing battle.[114] As a warning against future insurrections, the militia decapitated black rebels and placed their heads "up at every Mile Post they came to."[115] However, at least thirty blacks escaped.[116] The entire white population was ordered under arms, and a desperate manhunt was conducted to find the remaining rebels.[117] It was not until a week later that a militia company located the largest remnant of the insurrectionist band and killed most of the group in a second battle.[118] Perhaps a half dozen blacks escaped from this second battle,[119] and one of the leaders of the rebellion was not captured until three years later.[120]
Everyone in the South knew the story of the Stono Rebellion; it was the largest and best known of the slave insurrections. It [Page 334] was not, however, the only slave rebellion. One researcher identified about 250 rebellions or conspiracies involving at least ten slaves.[121] It is no wonder, therefore, that in a letter he wrote some time after this period, Jefferson worried that the "day which begins our combustion must be near at hand; and only a single spark is wanting to make that day to-morrow . . . if something is not done and done soon, we shall be the murderers of our own children."[122] [Page 335]
D. Slave Control
"Slavery was not only an economic and industrial system," one scholar noted, "but more than that, it was a gigantic police system."[123] Over time the South had developed an elaborate system of slave control. The basic instrument of control was the slave patrol, armed groups of white men who made regular rounds.[124] The patrols made sure that blacks were not wandering where they did not belong, gathering in groups, or engaging in other suspicious activity.[125] Equally important, however, was the demonstration of constant vigilance and armed force. The basic strategy was to ensure and impress upon the slaves that whites were armed, watchful, and ready to respond to insurrectionist activity at all times.[126] The state required white men and female plantation owners to participate in the patrols and to provide their own arms and equipment, although the rich were permitted to send white servants in their place.[127]
Virginia, South Carolina, and Georgia all had regulated slave patrols.[128] By the mid-eighteenth century, the patrols had become the responsibility of the militia.[129] Georgia statutes [Page 336] enacted in 1755 and 1757, for example, carefully divided militia districts into discrete patrol areas and specified when patrols would muster. The Georgia statutes required patrols, under the direction of commissioned militia officers, to examine every plantation each month and authorized them to search "all Negro Houses for offensive Weapons and Ammunition" and to apprehend and give twenty lashes to any slave found outside plantation grounds.[130]
In the South, therefore, the patrols and the militia were largely synonymous. The Stono Rebellion had been quickly suppressed because the white men worshiping at the Wiltown Presbyterian church on that Sunday morning had, as required by law, gone to church armed.[131] Some of the accounts of Stono refer to the body of white men who attacked the black insurrectionists as the "militia"[132] while others refer to them as "planters."[133] This is a distinction without a difference; the two groups were one and the same. Virtually all able-bodied white men were part of the militia, which primarily meant that they had slave control duties under the direction and discipline of the local militia officers.[134]
The militia was the first and last protection from the omnipresent threat of slave insurrection or vengeance.[135] The War for Independence had placed the South in a precarious position: sending the militia to the war against the British would leave Southern communities vulnerable to slave insurrection. The Southern states, therefore, often refused to commit their militia to the Revolution, reserving them instead for slave control.[136] Nor could the South help by sending much in the [Page 337] way of arms, for rifles were in short supply [137] and necessary to defend against possible slave insurrection.[138]
After the war, the militia remained the principal means of protecting the social order and preserving white control over an enormous black population. Anything that might weaken this system presented the gravest of threats. The South's fear that the North might destabilize the slave system ¾ weakening white control over the slave population ¾ gave anti-Federalists a powerful weapon.[139]
E. The Militia
One more piece of background is necessary before we turn to the events at the Richmond Convention. Much of the discussion at the Convention concerned the militia. What exactly was the public perception of the militia in 1789? Perhaps more importantly, what did political leaders ¾ men such as James Madison, George Mason, Patrick Henry, and the other delegates to the Virginia ratifying convention ¾ think of the militia? Specifically, did they believe in a "universal militia," that is, a militia composed of all able-bodied, adult, white citizens? An understanding of these issues is necessary to appreciate and perhaps deconstruct the Richmond debate. In addition, because the Second Amendment connects the right to bear arms to the militia, this background helps to shed light on Madison's thinking when he ultimately drafted the Amendment.
At the beginning of the American Revolution, the Founders extolled the virtues of the citizen militia, and particularly the universal militia. Modern insurrectionist theorists fill their writings with samples of this rhetoric. Stephen Halbrook, for [Page 338] example, quotes from a militia plan prepared by George Mason in 1775. Halbrook writes: "In his Fairfax County Militia Plan .For Embodying the People,' Mason reiterated that .a well regulated Militia, composed of the Gentlemen, Freeholders, and other Freemen' was necessary to protect .our antient Laws & Liberty' from the standing army."[140] Halbrook also quotes the following passage from Patrick Henry's famous "Give me Liberty of Give Me Death" oration:
They tell us . . . that we are weak ¾ unable to cope with so formidable an adversary. But when shall we be stronger? . . . Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? . . . Three million people, armed in the holy cause of liberty . . . are invincible by any force which our enemy can send against us.[141]
It was natural, if not essential, for the leaders of the Revolution to glorify the citizen militia, for they were trying to rally a people without an army to war. Borrowing heavily from Whig ideology,[142] the revolutionaries sought to persuade themselves and the community that an army composed of armed citizens ¾ farmers and tradesmen willing to grab a musket ¾ would prevail over professional soldiers and mercenaries in service to King George.[143] And how would these men defeat a better armed, better equipped, better trained, and more experienced force? They would win because they were virtuous.[144] Their opponents, the Americans told themselves, were corrupt.[145] A standing army was a tool of tyrants, and greed and ambition corrupted professional soldiers, making them little better than the mercenaries who fought at their side.[146] [Page 339]
At first the American belief in the citizen militia seemed justified, at least to the public at large. The Minutemen won victories at Lexington, Concord, and Bunker Hill.[147] Charles Royster writes: "For militia who were facing regulars, [American militiamen] showed great willingness and respectable competence in 1775."[148] Yet even in these early victories, where the Minutemen enjoyed the advantage of shooting at advancing Redcoats while crouching behind walls, the limitations of the militia were evident to the trained eye.[149] At the Battle of Bunker Hill, for example, Americans, firing from well-fortified positions on top of the hill, successfully repulsed two waves of British soldiers foolishly attempting a frontal assault.[150] They inflicted overwhelming losses on the enemy; some British companies had casualty rates of ninety percent, and every member of the British commander's personal staff was killed or wounded.[151] Nevertheless, a third attack forced the Americans to retreat, not because the British had won the upper hand, but because, in the words of Robert Leckie, "a steady trickle of desertions had drained [the defenders] like a leaking pipe."[152] Meanwhile, fresh militia troops nearby refused to come forward.[153] One colonel of the militia said he was too "exhausted" from building fortifications [Page 340] to lead his men to the battle front.[154] Thus, although they publicly celebrated Bunker Hill as a victory and praised the militia,[155] the more astute leaders of the Revolution realized almost immediately that the militia were not up to the job. Charles Royster writes:
Early in the war some revolutionaries argued that the militia, which had proven its competence at Lexington and Bunker Hill, could sustain a large part of the resistance to the British. By late 1776 little attachment to this idea remained . . . . Almost all revolutionaries agreed that a standing army ¾ no matter how suspect and unwelcome ¾ was necessary. Every state supported the idea that a Continental Army should bear the main fighting; every state tried to recruit and supply it; every state preferred to be defended by it.[156]
It is not hard to see why the states ultimately supported a standing army. The militia were untrained. "Musters were, after all, usually held but once a year; parading, drinking, and partying clearly took priority over target practice; and uniforms evoked far more passion and interest than musket fire," writes Michael A. Bellesiles.[157] The militia were undisciplined. They fired their muskets in camp, sometimes shooting at geese, sometimes to start campfires, sometimes at random for fun.[158] "Seldom a day passes but some persons are shot by their friends," Washington wrote in 1776.[159] Militiamen drank heavily, sometimes even drinking themselves into stupors in the midst of battle.[160] Worst of all, militia deserted in droves. [161] Washington wrote Congress: "The militia . . . are dismayed, intractable and impatient to return home. Great numbers have gone off, in [Page 341] some instances by whole regiments." [162] Some left because military life failed to provide sufficient comforts;[163] others fled when confronting the enemy. The New England militia panicked in the Battle of Long Island;[164] New Jersey's militia surrendered rather than help defend retreating Continental Army troops;[165] and in the battle of Camden, South Carolina, the North Carolina and Virginia militia, although outnumbering the British and supported by substantial Continental Army forces, bolted without firing a single shot.[166] When positioning their forces for battle, American commanders learned to not only place militia units between regular troops, but to station Continental soldiers behind the militia with orders to shoot the first militiamen to run.[167]
Most militiamen were not even good shots.[168] We think of men as having grown up with guns in colonial America.[169] We assume they were sharpshooters by necessity. Did not men have to become proficient with muskets to protect themselves from ruffians and Indians or to hunt to put food on the table? Contrary to myth, the answer, in the main, is no. In reality, few Americans owned guns.[170] When Michael A. Bellesiles reviewed more than a thousand probate records from frontier areas of northern New England and western Pennsylvania for the years 1765 to 1790, he found that although the records were so detailed that they listed items as small as broken cups, only fourteen percent of the household inventories included firearms and [Page 342] fifty-three percent of those guns were listed as not working.[171] In addition, few Americans hunted. Bellesiles writes: "From the time of the earliest colonial settlements, frontier families had relied on Indians or professional hunters for wild game, and the colonial assemblies regulated all forms of hunting, as did Britain's Parliament."[172]
"One year's experience convinced most American officials that they needed a standing army to fight the war," writes Charles Royster.[173] It was not only American military commanders who learned that the reality of the militia did not correspond to war rhetoric. The Continental Congress relented and authorized raising an army only after receiving message after message from Washington explaining in great detail the inadequacies of the militiamen and volunteers.[174] When Patrick Henry, then Governor of Virginia, informed Washington that the state was unable to fill its quota of regular troops but would send volunteers to make up the difference, Washington refused the offer. Volunteers were "ungovernable" Washington explained.[175] Even those who had sung the praises of the militia were reluctantly converted. According to Fawn M. Brodie, Thomas Jefferson's "faith that the militia could be counted on at least to defend home and family was shattered as time and again the raw troops broke ranks and ran from seasoned British regulars."[176]
The Founders, therefore, had a different view of the militia after the war than they had when the Revolution began. For many people, if not most, faith in the universal militia composed of the whole "body of the people" had been shattered. The post-war attitude is evident in The Federalist Number 29, written by Alexander Hamilton. Hamilton defended the wisdom of placing the organization and discipline of the militia in the [Page 343] hands of Congress.[177] "What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen," Hamilton wrote.[178] However, were he to deliver his thoughts on the militia to the federal legislature,[179] he would offer the following views:
The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, nor a week nor even a month, that will suffice for the attainment of it. To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be real grievance to the people . . . . and would form an annual deduction from the productive labor of the country to an amount which . . . would not fall far short of a million pounds . . . . The attention of the government ought particularly to be directed to the formation of a select corps of moderate size, upon such principles as will really fit it for service in case of need.[180]
Although everyone may not have agreed, this was the prevailing view.[181] After what had been learned in the war, it could not have been otherwise. Politicians continued to make Fourth of July speeches praising the militia. And anti-Federalists had their reasons for haranguing about how federal control over the [Page 344] militia would destroy a bulwark against tyranny. But in analyzing the events at the Richmond Convention and beyond, we need to keep both soapbox rhetoric designed to flatter an audience and the agenda of the anti-Federalists in perspective.
F. The Richmond Convention
The Virginia ratifying convention convened in Richmond on June 2, 1788. The Convention itself was high drama. As Harry Ammon writes, this was "the most distinguished body ever to assemble in Virginia, numbering among its 173 members the outstanding leaders of the past generation."[182] So many spectators showed up that the proceedings were moved from the capitol to larger facilities nearby.[183] Even before a white audience in the South, matters involving slavery and slave control were considered sensitive and were often raised in muted and oblique ways. But such matters could never be far from the minds of all those present at the Richmond Convention. As Conor Cruise O'Brien notes, "even where the word .slavery' was not specifically mentioned, the fact of slavery must have been subliminally pervasive in the whole debate over ratification."[184]
Patrick Henry and George Mason took the lead for the anti-Federalists. Though he had a reputation as a great orator, Henry was probably past his prime and tended to ramble.[185] Historians believe that he was an unalterable foe of ratification, and that he raised any argument that might win votes against ratification.[186] His style was emotional rather than analytical. He would roam widely, poking at one point and then another, but seldom discussing subjects methodically. It did not take him long to raise the issue of the militia; he did so in the middle of [Page 345] a long speech on the third day of the Convention. He began by quoting Article I, Section 8 of the Constitution, which divides authority over the militia between Congress and the states and, against the wishes of anti-Federalists, gives the lion's share of the power to Congress.
Let me here call your attention to that part which gives the Congress 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 ¾ reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.' By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither ¾ this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory.[187]
What was Henry driving at? In 1788, Americans did not fear foreign invasion.[188] Nor did Americans still harbor the illusion that the militia could effectively contest trained military forces.[189] As previously discussed, the militia had performed woefully during the war. Virginia's militia, in particular, had disgraced itself by bolting before firing a single shot in the critical battle of Camden, South Carolina.[190] The militia were the last and [Page 346] best defense against slave insurrection but practically useless against a professional army.
Without spelling it out in so many words, Henry was raising the specter of the federal government using Article I, Section 8 powers to subvert the slave system indirectly. He was suggesting that Congress, controlled in the future by an abolitionist North, might use its constitutional authority to arm the militia to, in effect, disarm them. He did not need to explain this; everyone in Richmond would have understood this to be the import of his remarks. George Mason took up the same theme on June 14. He began by adding a new wrinkle:
Mr. Chairman, unless there be some restrictions on the power of calling forth the militia . . . we may very easily see that it will produce dreadful oppressions. It is extremely unsafe, without some alterations. It would be to use the militia to a very bad purpose, if any disturbance happened in New Hampshire, to call them from Georgia . . . . If gentlemen say that the militia of a neighboring state is not sufficient, the government ought to have the power to call forth those of other states, the most convenient and contiguous. But in this case, the consent of state legislatures ought to be had. On real emergencies, this consent will never be denied, each state being concerned in the safety of the rest. This power may be restricted without any danger. I wish such an amendment as this -- that the militia of any state should not be marched beyond the limits of the adjoining state; and if it be necessary to draw them from one end of the continent to the other, I wish such a check, as the consent of the state legislature, to be provided.[191]
Mason's remarks gave Henry's supposition a different twist. Instead of Congress leaving the state vulnerable by disarming its militia, George Mason was raising the possibility of Congress simply removing the militia from Virginia. What, he asked, if a Southern state's militia were marched to New Hampshire?[192][Page 347] The consequence of such an act was obvious to everyone in the audience: the state would be unprotected against its slaves. The idea of an insurrection in New Hampshire was not necessarily farfetched; two years earlier the governor of New Hampshire summoned 2000 militiamen to suppress disturbances in the state.[193] New Hampshire had restored order, however, without assistance from sister states. The prospect of Congress ordering militia from the Southern states to deal with disturbances in New England was implausible except, perhaps, to those profoundly mistrustful of Congress's motives. Henry and Mason were not above stoking the coals of Virginia paranoia. "Virginia and North Carolina are despised," Henry told the Richmond Convention at one point.[194]
In addition to adding this new possibility, Mason reiterated Henry's supposition of Congress disarming the militia. He told the Convention:
The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless ¾ by disarming them. Under various pretences, 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, &c.[195]
Mason went on for some time, suggesting that disarming the militia would be part and parcel of a congressional scheme to [Page 348] create a standing army, which was something of a non sequitur since the Constitution expressly granted Congress the power to raise an army and navy.[196] Then he continued:
Why should we not provide against the danger of having our militia, our real and natural strength, destroyed? The general government ought, at the same time, to have some such power. But we need not give them power to abolish our militia. If they neglect to arm them, and prescribe proper discipline, they will be of no use. I am not acquainted with the military profession. I beg to be excused for any errors I may commit with respect to it. But I stand on the general principles of freedom, whereon I dare to meet any one. I wish that, in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them. With this single exception, I would agree to this part, as I am conscious the government ought to have the power.[197]
Mason's stories were contradictory. On the one hand, Mason suggested that the Southern militia would be sufficiently sharp instruments that Congress might employ them to quell insurrections as far away as New England. On the other hand, he suggested that Congress would cause the militia to atrophy in order to develop political support to raise a standing army. These were inconsistent visions. Moreover, there was a fundamental flaw in Mason's theory that Congress might deliberately allow the militia to atrophy in order to use their very frailty to develop political support for a standing army. Rather than creating support for a standing army, would not weakened militia stimulate demands for reinvigorating the militia themselves?
Madison responded to Mason's concern about a standing army as follows: "The most effectual way to guard against a standing army, is to render it unnecessary. The most effectual way to render it unnecessary, is to give the general government full power to call forth the militia, and exert the whole natural strength of the Union, when necessary."[198]
Before the Revolution there had been a great deal of rhetoric about the evils of standing armies. Although borrowed from [Page 349] Whig ideology, bombast equating standing armies with tyranny had a uniquely American perspective in purpose: the revolutionaries were building fervor against what was, in essence, a foreign army of occupation. But an American army in America, raised and controlled by the people's representatives, was another matter. Federalists argued that in a democracy it is difficult, if not impossible, for a government to use a standing army to impose its will on the people.[199] Moreover, the belief that a citizen militia could effectively fight against a professional army had been demolished during the war by the militia themselves.[200] While some anti-Federalists continued to talk about the evils of a standing army, they had lost this argument in Philadelphia.
However, Mason's main concern was not the creation of a standing army but the preservation of the militia. Mason personally owned three hundred slaves.[201] He understood the critical role of the militia in preserving the slave system. He knew firsthand from service at the Philadelphia Convention that the North was not sanguine about the slavery compromise and he could not help fearing how Congress would exercise its authority over the militia. Mason was simply using every device possible to stoke the fires of fear, fear his audience certainly shared.
Patrick Henry was even more direct. He drew the audience's attention to the section of the Constitution that provides that no state may, without the consent of Congress, "engage in War, unless actually invaded,"[202] and asked: "If you give this clause a fair construction, what is the true meaning of it? What does this relate to?"[203] Henry answered this question as follows:
Not domestic insurrections, but war. If the country be invaded, a state may go to war, but cannot suppress insurrections. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress . . . . Congress, and Congress only, can call forth the militia.[204] [Page 350]
If members of the audience were previously uncertain about the meaning of Mason and Henry's warning, this had made it plain. Congress might want to leave the South defenseless against its slaves.
The Federalists did their best to respond to the suggestions that the federal government would, in one way or another, render the militia impotent as a slave control device. They sought to show, for example, that Mason's proposal for a constitutional amendment that would prohibit Congress from sending the militia beyond the borders of an adjoining state without the consent of the state legislature would itself imperil the South. A Federalist delegate named Wilson Nicholas addressed Mason's proposal as follows:
Who will be most likely to want the aid of the militia? The Southern States, from their situation. Who are the most likely to be called for? The Eastern States, from their strength, &c. Should we put it in the power of the particular states to refuse the militia, it ought to operate against ourselves.[205]
Madison also addressed Mason's concern that Congress could march Georgia's militia to New Hampshire: "There is something so preposterous, and so full of mischief, in the idea of dragging the militia unnecessarily from one end of the continent to the other, that I think there can be no ground of apprehension."[206] And Madison responded to the argument that only Congress could arm the militia, "I cannot conceive that this Constitution, by giving the general government the power of arming the militia, takes it away from the state governments. The power is concurrent, and not exclusive."[207] [Page 351]
Madison blundered by arguing that the power to arm the militia was concurrent. John Marshall avoided this pitfall later in the Convention when he said simply: "If Congress neglect our militia we can arm ourselves. Cannot Virginia import arms? Cannot she put them into the hands of her militia-men?"[208] However, instead of putting the matter in practical terms such as these, Madison suggested that even though the Constitution gave Congress the authority to arm the militia, the states also possessed a constitutional power to arm the militia. This position is difficult, if not impossible, to maintain. Though he generally could not spar with Madison on a technical level, Patrick Henry saw an opportunity and seized it. When Madison sat down, Henry rose and ridiculed Madison's argument:
As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of .arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States.' To the state legislatures is given the power of .appointing the officers, and training the militia according to the discipline prescribed by Congress.' I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects. If the states have the right of arming them, &c., concurrently, Congress has a concurrent power of appointing the officers, and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will carry you into endless absurdity ¾ that Congress has nothing exclusive on the one hand, nor the states on the other.[209]
Henry proceeded for some time to further demonstrate the absurdity of implied concurrent powers. Then Henry made the following point:
When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance . . . . If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or [Page 352] discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied.[210]
What was Madison thinking at this juncture? Henry had suggested that all he wanted was this one modest and reasonable change in the Constitution, to allow the states to arm the militia if the federal government failed to do so. Henry's real objective, of course, was to destroy rather than reform the Constitution. Besides kicking himself for handing Henry an oratorical weapon, Madison may well have been thinking that Henry's point had merit ¾ the states ought to have a concurrent authority to arm their militia. What harm would there be in it, especially if it would relieve some of the anti-Federalist paranoia about Congress emasculating the militia? Two years later Madison would write the Second Amendment, which has essentially the same effect as the provision that Henry claimed to be advocating.
In one of his last speeches in the final days of the Convention, Patrick Henry raised the question of slavery in so direct a fashion that he appears to have violated the mores of that time and place. "In this state there are two hundred and thirty-six thousand blacks, and there are many in several other states. But there are few or none in the Northern States,"[211] he began. He suggested that under its power to provide for the general defense, Congress might enlist blacks in the army and then emancipate them. "Slavery is detested," he explained.[212] In a moment he continued:
[T]hey will search that paper, and see if they have power of manumission. And have they not, sir? Have they not power to provide for the general defence and welfare? May they not think that these call for the abolition of slavery? May they not pronounce all slaves free, and will they not be warranted by that power? This is no ambiguous implication or logical deduction. The paper speaks to the point: they have the power in clear, unequivocal terms, and will clearly and certainly exercise it.[213] [Page 353]
He sought to drive home the point that Congress would inevitably attempt to abolish slavery. [A] decided majority of states have not the ties of sympathy and fellow-feeling for those whose interest would be affected by their emancipation. The majority of Congress is to the north, and the slaves are to the south."[214]
Jack N. Rakove of Stanford University suggests Henry's speech may have been a mark of desperation.[215] The tide was apparently now running in the Federalists' direction. Based on his own head count, Madison had privately calculated that the Federalists had a small majority of between three and four delegates.[216] Henry's speech probably did the anti-Federalist cause more harm than good. He weakened his point by overstating it; whatever implied powers one might claim to find, the Constitution did not in "clear, unequivocal terms" grant Congress the power of emancipation. "I was struck with surprise when I heard him express himself alarmed with respect to the emancipation of slaves," Madison responded shortly thereafter.[217] "There is no power to warrant it, in that paper. If there be, I know it not."[218] Although Madison's argument may have been persuasive and, on the whole, reassuring, it may also have heightened Southern anxiety. If the federal government found the slave system so obnoxious but lacked the constitutional authority to attack it directly, it might look for ways to undermine the system indirectly.
As the Convention reached its final days, the anti-Federalists increasingly criticized the absence of a bill of rights. Some believe that this was their most persuasive argument.[219] Their strategy was to ask the Convention to declare that the Constitution should be ratified, but only after a bill of rights had been included. Madison and the Federalists adopted a counter-strategy. They did not oppose a bill of rights in principle, but argued that failure to ratify the Constitution until the states had all agreed on a bill of rights would lead to chaos.[220] Madison ar-[Page 354] gued that if the anti-Federalists were right when they asserted that the desire for a bill of rights was strong everywhere, then there will be little difficulty adding one through the amendment process.[221]
The anti-Federalists submitted a resolution stating that it was the "opinion" of the Convention that the Constitution ought to be ratified, but that the states should first consider a bill of rights proposed by the Virginia Convention.[222] The Federalists submitted a resolution to ratify the Constitution and appoint a committee to draft a proposed bill of rights that the Convention would recommend for subsequent adoption.[223] The anti- Federalist resolution came to a vote first, and was defeated by a vote of eighty to eighty-eight. Then, on a second vote, the Federalist resolution carried eighty-nine to seventy-nine.
G. Virginia's Proposed Declaration of Rights
The Richmond Convention was not quite done. A twenty member committee had been appointed to draft a recommended bill of rights. The committee included George Mason and Patrick Henry, as well as John Madison, John Marshall, and James Monroe. The opportunity to write a recommended bill of rights was all the anti-Federalists had left. Naturally, they wanted a strong and elaborate document, one that would restrict the power of the federal government as much a possible. The proposed bill of rights would be a different matter for the Federalists. They had won. The Convention had ratified the Constitution unequivocally; the recommended bill of rights would be a document without legal effect. The work of the committee was anti-climatic.[224] For the Federalists, and particularly for politicians such as Madison, this was a political opportunity. Since Virginia was nearly evenly divided between Federalist and anti-Federalists, it made sense to assuage the feelings of the [Page 355] defeated. Thus, despite the fact that the committee's proposed declaration of rights contained twenty provisions in addition to twenty proposed amendments to the Constitution, many of which would have been highly controversial if taken seriously, the Convention passed the committee's documents unanimously and without recorded debate.[225]
The committee recommended forty separate provisions, a "declaration or bill of rights" consisting of twenty provisions and twenty amendments to the Constitution, four relating to the right to bear arms or the militia. The seventeenth and nineteenth provisions in Virginia's proposed Declaration of Rights stated:
17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.
. . .
19th. That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.[226]
The two proposed constitutional amendments relevant to the militia were as follows:
9th. That no standing army, or regular troops, shall be raised, or kept up, in time of peace, without the consent to two thirds of the members present, in both houses.
. . . .
11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in actual service, in time of war, invasion, or rebellion; and when not in the actual service of the United [Page 356] States, shall be subject only to such fines, penalties, and punishments, as shall be directed or inflicted by the laws of its own state.[227]
Advocates of the individual rights theory of the Second Amendment tend to attach great significance to Virginia's proposed Declaration of Rights. This is a mistake. The passionate debate over ratification that culminated in the vote of eighty to eighty-nine was followed, without debate, by a unanimous vote for a long list of proposed rights and amendments to the Constitution. The Declaration of Rights did not so much represent the sense of the Richmond Convention as a cathartic exercise for the defeated anti-Federalists.
In one sense, the right to bear arms provisions in the Declaration of Rights were standard anti-Federalist fare. They were rhetoric recycled from newspaper articles and from speeches made and rejected at the Constitutional Convention in Philadelphia.[228] The issue of whether Congress should have the authority to raise a standing army, for example, was exhumed after having been laid to rest in Philadelphia. Including this issue in a list of proposed constitutional amendments may have been emotionally gratifying to the defeated anti-Federalists, but it is doubtful many expected the issue to be reopened. In another sense, however, the Declaration's right to bear arm provisions represented something new.
The Virginia Bill of Rights, which had been adopted in 1776 and was still in effect, did not contain a right to bear arms provision.[229] The principal author of that document was none other than George Mason.[230] Why did Mason and the Richmond delegates attach greater significance to a right to bear [Page 357] arms in 1788 than in 1776? Mason and Henry had raised the specter of the national government undermining the slave system by disarming the state militia, and although they had failed to stop ratification, they had persuaded many Virginians, and perhaps even themselves, that this was a real concern.
The structure and language of the Declaration of Rights provide further evidence that the right to bear arms was linked to the militia. Both concepts are incorporated in the same provision. Moreover, the phrase "to bear arms" was a term of art that meant participating in military affairs, not merely carrying weapons. As Garry Wills put it: "[O]ne does not bear arms against a rabbit."[231]
This is not to say that the concept of a right to bear arms originated in Richmond. It did not. Four of the thirteen state constitutions adopted between the signing of the Declaration of Independence in 1776 and the ratification of the Constitution in 1789 contained a right to bear arms provision.[232] As Part II discusses, the English Declaration of Rights of 1689 contained a right to have arms provision. Nor were the concerns raised at Richmond unique to Virginia. Fears about whether the federal government would attempt to destroy the slave system were voiced at the ratifying conventions in the other Southern states,[233] as were apprehensions about federal control over the [Page 358] militia.[234] But it was at Richmond that concerns about slave control and federal authority over the militia were united, producing a new rationale for a right to bear arms. [Page 359]
H. Madison's Political Career
The anti-Federalists had been defeated twice: first at the Constitutional Convention in Philadelphia, and again in the battle to prevent ratification. Virginia's ratification was a watershed. As Irving Brant noted: "Virginia's ratification, following New Hampshire's,[235] not only built the state total to ten, but added overpowering weight to the new system. Rejection by any state would mean blockaded isolation."[236] The steam went out of the opposition at the convention in Poughkeepsie, New York,[237] and New York ratified the Constitution on July 26.[238][Page 360] Yet the anti-Federalists refused to give up. Their new strategy was two-fold. First, they planned to try to convene a second constitutional convention to consider a bill of rights, which they hoped would constrict the power of the federal government. Second, they planned to send as many anti-Federalists to Congress as possible.[239]
Intent on sending two anti-Federalists to the United States Senate from Virginia, Patrick Henry employed the Machiavellian strategy of supporting Madison for a seat in the old Congress to keep Madison out of Virginia.[240] Then, in Madison's absence, Henry sought to elect anti-Federalists Richard Henry Lee and William Grayson to the United States Senate.[241] Henry was still a powerful figure. Even Washington was in awe of his political prowess in the Virginia Legislature. "He has only to say let this be law, and it is law," Washington remarked.[242] When the Senate election took place in the Virginia Legislature, Henry pulled no punches. He openly questioned Madison's character, and stated that Madison's election to the Senate would produce "rivulets of blood throughout the land."[243] Henry was successful; Madison lost to Lee and Grayson.[244]
In an age when politicians preferred to portray themselves as statesmen who were reluctantly drafted for public office, Madison had to scramble to win a seat in the House of Representatives.[245] Henry sought to slam this door closed as well. With the specific purpose of keeping Madison out of Congress altogether, Henry gerrymandered the congressional districts so that [Page 361] Madison's home county was lumped into a district strong in anti- Federalist sentiment. In addition, he ensured legislation was enacted to confine candidates to the district in which they resided.[246]
Madison's political career hung by a thread. Though reluctant at first, he threw himself into a vigorous campaign for Congress. His opponent James Monroe was a formidable candidate[247] who was promoted as a champion of a bill of rights.[248] Here, Madison was vulnerable. Madison had not supported a bill of rights in either Philadelphia or Richmond ¾ he strongly believed in structural rather than rights based checks on the arbitrary will of the majority [249] ¾ and yet he was now standing for election in a congressional district in which a bill of rights was widely popular. Cognitive dissonance set in.[250] In a long letter to Jefferson on October 17, 1788, Madison wrestled with his views on a bill of rights.[251] "My own opinion has always been [Page 362] in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration," Madison wrote.[252] His heart was not in it; the arguments Madison set out against a bill of rights were more vigorously expressed than those he listed in its favor.[253] Nevertheless, the deed was done. From this time forth, Madison campaigned as a supporter of a bill of rights, promising that if elected he would feel "bound by the strongest motives" to work to append a bill of rights to the Constitution.[254] Madison ultimately prevailed in his campaign for a seat in the House of Representatives, defeating Monroe by a comfortable majority.[255]
I. The Drafting of the Second Amendment
How personally committed Madison became to a bill of rights is unknown, but after his election to Congress in February 1789, he was at least politically committed.[256] Moreover, Madison was [Page 363] determined not to allow the anti-Federalists to use a bill of rights as an excuse to call a second constitutional convention at which any part of the Constitution might be reconsidered. The anti-Federalists persuaded New York to send a letter to the governors of the thirteen states calling for a "general convention" to consider amendments to the Constitution.[257] In addition, North Carolina refused to ratify the Constitution until Congress called a second constitutional convention.[258] Madison was intent that the process of drafting a bill of rights not be used to unravel the carefully woven fabric of the republic.[259] To preempt this mischief, and to fulfill his commitment to his constituents, Madison propelled himself forward as the prime mover of a bill of rights.
There are a few rights that Madison considered of special importance, or "the great rights" as he called them. These rights included trial by jury, freedom of the press, and "liberty of conscience."[260] He was especially concerned with religious liberty.[261] But how did Madison decide what other rights to enshrine in the Constitution? It was not an easy task, especially for a man who was at best profoundly skeptical of the wisdom of a [Page 364] bill of rights.[262] Eighteenth century America reverberated with a cacophony of proclaimed rights. The thirteen state constitutions[263] collectively contained a total of more than four hundred separate provisions, what Gordon S. Wood calls "a jarring but exciting combination of ringing declarations of universal principles with a motley collection of common law procedures."[264]
But for the events at Richmond, it is doubtful that Madison would have included a right to bear arms in his proposed list of rights. Only four of the thirteen state constitutions ¾ Massachusetts, North Carolina, Pennsylvania, and Vermont ¾ contained a right to bear arms provision. Moreover, these documents were divided on the scope of the right. The Massachusetts and North Carolina declarations of rights guaranteed a collective right only; they spoke, respectively, of a right to bear arms "for the common defence"[265] or "for the defence of the State."[266] The declarations of rights of Pennsylvania[267] and Vermont,[268] on the other hand, guaranteed citizens a right to bear arms "for [Page 365] the defence of themselves and the State."[269] Thus, over two-thirds of the state constitutions did not contain a right to bear arms, and the minority was divided on the essential purpose of such a right. There is little reason to believe that, in rummaging among a collection of more than four hundred different provisions, Madison would have selected one embraced by a small and divided minority of states. In addition, five states and North Carolina, which remained outside the Union pending Congress's consideration of amendments, had transmitted to Congress proposed bills of rights and other constitutional amendments.[270] Neither of the two documents adopted before the Richmond Convention contained a right to bear arms.[271] New Hampshire, which held its ratifying convention simultaneously with Virginia, proposed that "Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion."[272] But New Hampshire was the only state to suggest a right to bear arms that was not connected to the militia. New York's proposal was substantially similar to Virginia's,[273] and with the exception of inconsequential differences in the placement of commas, North Carolina adopted Virginia's right to bear arms provision verbatim.[274] The proposed bills of rights were, of course, largely anti-Federalist documents.
On June 8, 1789, Madison submitted a resolution proposing a list of nine multi-part constitutional amendments that, if [Page 366] adopted, would integrate a bill of rights into the main body of the Constitution.[275] He included a right to bear arms provision that read:
The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.[276]
We do not know why Madison chose to draft his provision precisely this way. He did not explain his thinking in any speech or letter that has come to light. Only by examining Madison's drafting choices can we hope to understand his objective.
Madison's provision clearly tracks item seventeen in Virginia's proposed Declaration of Rights.[277] Most significantly, like Virginia's provision (and unlike New Hampshire's),[278] Madison's provision connected the right to bear arms to the militia. However, Madison made a number of significant changes to Virginia's language.
In comparing Madison's proposal to the Virginia model from which he was working,[279] the first obvious difference is structure. Virginia's provision begins by declaring that "the people have a right to keep and bear arms."[280] This is a simple sentence consisting of a subject ("the people"), verb ("have"), and [Page 367] object ("a right to keep and bear arms"). The verb is in the active voice and stated affirmatively. Although the meaning of the words may be open to interpretation, this much is clear: Virginia's provision purports to grant a right, regardless of whether one previously existed. But Madison elected not to use Virginia's language. He wrote a different sentence. The implied subject of Madison's sentence is the federal government. The verb, translated from Madison's passive voice into the active voice, is "shall not infringe." The object of Madison's sentence ("The right of the people to keep and bear arms") begins with the specifying article "the" rather than the generalizing article "a" used in Virginia's proposal ("a right to keep and bear arms").
With strong and clear language available to him, why did Madison use a patently weaker structure? Madison's thinking about constitutional issues was both precise and nuanced, and we must be sensitive to even subtle connotations in his language. Madison was inclined to protect rights by limiting the power of government, and his drafting may reflect this preference. But it appears that something else may be here as well, and perhaps it is this: Madison's language does not so much grant a right as acknowledge that one exists and protect that right, whatever it may be, from being infringed by the federal government. Madison may have been suggesting that one must look outside the amendment ¾ to state or common law perhaps ¾ for the definition of this right.
Far more clear is Madison's reason for deleting Virginia's description of the militia as being "composed of the body of the people trained to arms." Madison knew that Virginia's provision would substantively change the Constitution. Article I, Section 8 gives Congress the power to "provide for organizing" the militia,[281] which implicitly includes the power to decide the composition of the militia.[282] This was a controversial matter. Anti-Federalists [Page 368] opposed congressional control of the militia. Moreover, they favored "general" rather than "select" militia. That is, they believed that the militia should be drawn from the entire community, or, more precisely, from all adult, able-bodied, white males, rather than only individuals well suited and well trained for militia service.[283] The Federalists wanted Congress to have authority to organize the militia as it saw fit, and they prevailed at the Constitutional Convention. Virginia's provision included a back door attempt to incorporate into the Constitution an endorsement of the general militia. Madison, choosing not to limit Congress's authority to determine the composition of the militia, deleted the offending phrase.
Madison changed another phrase as well. Virginia's proposal states that the militia is "the proper, natural and safe defence of a free State."[284] Madison changed this to "the best security of a free country."[285] His use of the word "country" rather than "state" reflects his Federalist inclination to emphasize the national government. Particularly relevant for our purposes, however, is Madison's substitution of "security" for "defence." Political rhetoric notwithstanding, no one who understood the recent history of the Revolutionary War considered the militia the best defense against foreign invasion.[286] As a Virginian, Madison knew that the militia's prime function in his state, and throughout the South, was slave control. His use of the word "security" is consistent with his writing the amendment for the specific purpose of assuring the Southern states, and particularly his constituents in Virginia, that the federal government would not undermine their security against slave insurrection by disarming the militia.
Finally, it is important to note that Madison retained the exemption in Virginia's proposed Declaration of Rights for persons "religiously scrupulous of bearing arms."[287] Madison's inclusion of this provision establishes that he did not believe the right belonged to individuals themselves. Rather, Madison was [Page 369] addressing what he perceived to be not merely a right, but an obligation to keep and bear arms, that would necessarily be subject to governmental regulation. Madison passionately believed in religious liberty and "rights of conscience,"[288] and he wanted to protect Quakers and others from being compelled to violate their faith. Significant for our purposes, however, is that Madison was writing an amendment to set limits on federal control over the militia. In other words, he sought to prohibit the federal government from compelling Quakers to bear arms in the militia, as well as to prohibit the federal government from disarming the militia.
All of these actions ¾ Madison's structure of the amendment, his refusal to define the militia as "composed of the body of the people trained to arms," his substitution of the phrase "security of a free state" for "defence of a free state," and his retention of the exemption for those with religious objection to bearing arms ¾ are consistent with the thesis that Madison's objective in writing the Second Amendment was not to grant an individual right but to set limits on congressional power. Specifically, Madison sought to assure that Congress's power to arm the militia would not be used to disarm the militia. In a sense, Madison wrote the amendment that Patrick Henry claimed to want during the ratification debate in Richmond. That is, Madison's draft of the Second Amendment made the power to arm the militia concurrent rather than exclusive to the federal government.
J. Legislative History
The recorded legislative history is sparse indeed. No notes were made of Senate debates,[289] and notes of the House proceedings are incomplete.[290] There is, therefore, little that illuminates why Madison's draft ultimately emerged into the form finally proposed by Congress and transmitted to the states on September 28, 1789. We know that the House inserted "composed of the body of the people"[291] and that the Senate [Page 370] removed the phrase.[292] We know that the House committee changed "free country" to "free State,"[293] and that the Senate changed "being the best security of a free State" to "necessary to the security of a free state." But the only recorded debate about the right to bear arms concerned whether persons should be exempted for religious reasons.
In debate on the floor of the House, Elbridge Gerry, the prominent anti-Federalist from Massachusetts who was one of the three delegates who refused to sign the Constitution at the Philadelphia Convention, complained that "congress could take such measures with respect to a militia, as to make a standing army." However, when challenged as to what precisely he was advocating, Gerry stated that he wanted to confine the exemption to "persons belonging to a religious sect, scrupulous of bearing arms."[294] Following brief discussion, the House declined to take any action on this point. The entire phrase was later deleted by the Senate. A motion by Gerry to insert the phrase "trained to arms" after "militia" failed for want of second.[295]
It is difficult to glean much from this sparse congressional history. From what little history exists, it appears that most of the attention was focused on other amendments. In any event, Madison's proposed amendment was changed in two respects. First, the religious exemption was deleted. Second, the two remaining clauses were reversed and separated by a coma rather than a semi- colon, thereby tightening the connection between the militia and the right to keep and bear arms. With the exception of these changes, the provision finally adopted by Congress and ratified by the states is essentially identical to the one proposed by Madison.[296] [Page 371]
Madison's colleagues in the House and Senate almost certainly considered the Second Amendment to be part of the slavery compromise. Many members of the First Congress had been delegates to the Constitutional Convention in Philadelphia and were well aware that without the slavery compromise it would have been impossible to include both the Northern and slave holding states in a common Union. The Southern delegates had made it clear that there was no point in even drafting a constitution if the federal government had the power to abolish slavery. "The true question at present is whether the Southn. States shall or shall not be parties to the union," John Rutledge of South Carolina had told them.[297] From that point on the delegates worked mightily to produce a constitution palatable to both North and South. [298] The carefully negotiated compromise was reflected in (1) the fugitive slave provision, requiring that runaway slaves escaping across state lines be returned to their owners;[299] (2) the provision prohibiting Congress from abolishing the African slave trade until 1808 or imposing an import tax of more than ten dollars per slave;[300] and (3) provisions counting slaves as three-fifths of free persons for the purposes of apportioning congressional representation and direct taxation.[301] In effect, Madison proposed that the slavery compromise be supplemented by another constitutional provision prohibiting Congress from emasculating the South's primary instrument of slave control, and Congress acceded to that request.[302] [Page 372]
K. The Absence of Direct Evidence
The evidence that the Second Amendment was written to assure the South that the federal government would not disarm its militia is, I suggest, considerable. However, the evidence is almost entirely circumstantial.[303] Madison never expressly stated that he wrote the Second Amendment for that purpose. If the thesis is sound, why is no direct evidence to be found supporting it?
There are a number of possible answers to that question. The most important concerns the genesis of the Amendment. It originated in a political struggle, one in which the combatants attempted to use issues for their own purposes. Mason and Henry fanned the flames of Southern paranoia to manipulate the ratifying Convention, and Madison later became a fire fighter to protect both the Constitution and his own political career. These were games of masquerade and innuendo. No one's purpose was served by laying cards upon the table. The history of the Second Amendment was hidden by design.
This, however, may not be the only reason for the absence of direct evidence. Another reason is that the available records are woefully incomplete. No notes whatever were made of the Senate's debate in the First Congress, and the stenographer for the House of Representatives was a drunkard whose mind often wandered for long periods of time during which he filled the journals with doodles and sketches instead of the remarks of the members.[304] Similar problems plague the transcripts of the Virginia ratifying convention.[305] In fact, after reviewing transcripts [Page 373] of the state ratifying conventions, Elbridge Gerry said that he found them "generally partial and mutilated."[306] It is therefore possible that express statements were made but no longer survive.
Another reason for the absence of more explicit statements concerning the true purpose behind the Second Amendment is that the slave comprise and slave control were sensitive topics. Although the Founders incorporated the terms of the slavery compromise into the Constitution, they did so obliquely. The words "slaves" or "slavery" do not appear anywhere in the document.[307] "The delegates carefully chose language designed to make the Constitution more palatable to the North,"[308] even going so far as to employ "inscrutable language that the people could not readily understand," Paul Finkleman writes.[309] Indeed, the Founders themselves admitted to this deception.[310]
The politics over winning Northern support for the Constitution, and later the Bill of Rights, was undoubtedly a large part of the reason slavery is not expressly mentioned in those documents. However, there may have been more to it than that. Bargaining over slavery produced a sense of shame on both sides.[311] Northerners felt shame for becoming complicit in the slave system. For Southerners, the issue was more complex and confused, but even staunch defenders of the system struggled with a sense of disgrace.[312] It seems de rigueur for Southern [Page 374] politicians, even those who were themselves large slave holders, to preface remarks about slavery with statements of how personally repugnant the institution of slavery was to them.[313] Politicians of the time, from both North and South, avoided the subject of slavery as much as possible.[314]
It cannot be overemphasized that slavery was the central feature of life in the slave holding states, and that the South depended on arms and the militia to protect itself against the [Page 375] constant danger of a slave revolt. It is true that in eighteenth century America there was a great deal of soapbox rhetoric about freedom and the right to keep and bear arms, much as there is today. Nevertheless, by virtue of their daily circumstance, Southerners had to be infinitely more concerned about slave control than abstract, ideological, or contingent beliefs about liberty and guns. Much of the rhetoric about guns and liberty was probably both bravado and smokescreen ¾ a defense mechanism, if you will, to emphasize the importance of being armed without unveiling the ever present dread of having one's throat slit in the night. Northern statesmen understood this. As Madison noted, everyone recognized that slavery produced a great division between the Northern and Southern states.[315] It would have been injudicious, to say the least, for Northern politicians to rub Southern noses in cold realities. One would not expect frank discussions about the consequences of an unarmed militia, but rather a tacit collaboration to leave unsaid what everyone so clearly understood.
These factors may have combined. That is, to the extent that express statements about slave control were made at ratifying conventions in the South or later in the First Congress, stenographers may have considered it both politic and convenient to abbreviate or omit those remarks. Clearly it would have been unwise to acknowledge the possibility that Congress might undermine the slave system by disarming the militia and then fail to foreclose this possibility by constitutional amendment.
II. THE MYTH OF AN ANGLO-AMERICAN RIGHT
The events at the Richmond ratifying convention in June 1788 provided the impetus for embodying a right to bear arms in the Bill of Rights. However, the concept of such a right did not [Page 376] originate in Richmond. Madison and the Founders borrowed more than they created. A right to have arms provision was contained in the English Declaration of Rights of 1689, a document considered part and parcel of the English Constitution. Although the English Declaration of Rights is not directly part of the American experience, it is nevertheless an integral part of the story of the Second Amendment. The Founders were intimately familiar with the Declaration and its history. Indeed, the Declaration and its history helps illuminate the Founders' thinking about a right to bear arms, and specifically the purpose of such a right.
A. Malcolm's Thesis
One of the stars in the constellation of insurrectionist right theorists is Joyce Lee Malcolm, a professor of history at Bentley College in Massachusetts. In 1994, Malcolm published a book entitled To Keep and Bear Arms: The Origins of an Anglo-American Right,[316] which has become something of a cult classic. Praised by fellow insurrectionists as "the definitive historical treatise on the right to arms"[317] and ballyhooed in publications such as the NRA's American Rifleman,[318] Malcolm's book was so unexpectedly popular that it went into a third printing within a year of its initial publication.[319] Within the gun rights community at least, Malcolm's name has been associated with the proposition that the right of the individual to keep and bear arms was part of English constitutional law for a hundred years before the [Page 377] Founders drafted the American Bill of Rights.[320] The Second Amendment is, in Malcolm's words, "a legacy of the English Bill of Rights."[321]
Malcolm's thesis is that the Second Amendment was derived from the English Declaration of Rights, also known as the Bill of Rights, of 1689. With this, there is no quarrel. But Malcolm goes further. She argues that the Declaration of Rights granted an individual right, that is, that it gave individuals the right to keep and bear arms notwithstanding the enactment of any laws to the contrary. She also argues that the purpose of this right was to allow individuals "to have arms for self-defence and self-preservation."[322] With these last two propositions, Malcolm stands on shaky ground. In fact, it may not be too extreme to say that she is patently wrong.
Malcolm concedes that until 1689 there was no individual right to keep and bear arms in England.[323] Indeed, she spends more than a hundred pages describing all manner of governmental restrictions on the ownership of guns and weapons including: a 1541 law prohibiting persons with incomes of less than a hundred pounds a year from owning handguns;[324] instructions issued to the militia in 1655 to confiscate all arms and ammunition from strangers and to store all weapons, including those belonging to militia members themselves, in safe [Page 378] places;[325] measures enacted in 1659 requiring the inventorying of all arms and ammunition in private hands[326] and the disarming of anyone of "suspected or knowne disaffection" to the government;[327] and the adoption of a firearm registration system in 1660.[328] If she is to succeed in her argument that the Declaration of Rights granted an individual right, therefore, Malcolm must argue that the Bill of Rights of 1689 created a new right, one that did not previously exist in England. It is at this point that Malcolm enters dangerous terrain. Leading English historians emphasize that when Parliament[329] presented William of Orange with the Declaration of Rights, all agreed that no new rights were being created.[330] William was acknowledging and agreeing to abide by pre-existing principles, nothing more. Indeed, the Declaration itself described the rights [Page 379] listed as "antient rights."[331] This, however, is only the beginning of Malcolm's radical departure from accepted history.
B. The Glorious Revolution
A short description of what the English refer to as the Glorious Revolution[332] is necessary to put the Declaration of Rights into historical context. On February 16, 1685, King Charles II died unexpectedly. He left no legitimate heir and was succeeded by his brother James.[333] Although James II was popular at first, as time went on he became despised both by the people and Parliament. In the words of one historian, "James II was rigid, proud, single-minded and self-centered."[334] And that was not the worst of it. James was also Catholic, having secretly converted in 1673. The King was the Supreme Governor of the Church of England,[335] and James promised Parliament he would defend and support the Church of England.[336] Nevertheless, spurred on by his devoutly Roman Catholic Queen, James sought to restore Catholicism in England.[337]
During the reign of Charles II, Parliament had enacted the Test Acts, which forbade the King from appointing Catholics to positions of high civil or military office, and disqualified Catholics from membership in Parliament.[338] Indeed, James's conversion to Catholicism had come to light when this legislation was enacted. James had shocked the nation by resigning his position as the Lord High Admiral rather than taking sacrament according to rites of the Church of England.[339] Now, as King, James opened a Catholic chapel in London, surrounded himself with Catholic advisers, and began appointing Catholics to the Privy Council, the faculties of Oxford and Cambridge, and, most disturbing of all, as officers in his rapidly expanding army.[340][Page 380] James dealt with the inevitable public outcry over his violation of the Test Acts by arranging a case challenging his appointment of Catholic military officers. The case would come before the Court of King's Bench, but only after he packed the court with judges who would do his bidding.[341] The court held that the King of England was a sovereign prince, that "the laws of England are the king's laws," and that the King could therefore dispense with the law "in particular cases and upon particular necessary reasons" as he saw fit.[342]
Catholics were detested and feared in late seventeenth century England.[343] There were constant rumors of Catholic plots and outrages. In 1666, for example, a terrible fire destroyed most of London, which many believed had been set by Catholics.[344] Following the Great Fire, as the English called it, and again after a public panic known as the Popish and the Rye House plots, Charles II ordered that weapons in the hands of Catholics and dissident Protestants be seized.[345] Now, it seemed that James II was trying to turn the tables. Not only was he expanding the army under the direction of Catholic officers, but he was working strenuously to reduce all weapons in private hands,[346] which of course meant mostly Protestant hands.
All of this was political madness; Catholics comprised less than ten percent of the English population, and probably no more than two percent.[347] Undeterred, James finally pushed things to the breaking point. In May 1688, he issued a Declaration of Indulgence granting freedom of worship to Catholics and Protestant dissidents, abolishing the Test Acts, and ordering bishops throughout the realm to have the Declaration read during church services on two consecutive Sundays.[348] When six [Page 381] bishops and the Archbishop of Canterbury refused, James had them arrested and imprisoned in the Tower of London.
The following month, the Queen gave birth to a son.[349] Instead of merely tolerating a Catholic king for the rest of his life, England was now faced with the prospect of a line of Catholic kings. Seven prominent Englishmen promptly sent a secret letter to William of Orange inviting him to invade England, and promising him the overwhelming support of the English people if he did. William, the Stadtholder of Holland, was married to James' sister, Mary.[350] As the principal force challenging the expansionism of Louis XIV, the Catholic king of France, William was the champion of Protestantism on the continent. While this letter was en route to William, James, frustrated with its refusal to repeal the Test Acts, dissolved Parliament.[351]
Flying under the banner of English colors emblazoned with the motto "the Protestant Religion and the Liberties of England," William set sail for England with the Dutch fleet.[352] James, learning of the danger, asked Louis XIV for help. Although Louis promised to send the French fleet to intercept William, this did not come to pass.[353] On November 15, William landed at Torbay with a considerable force and began marching toward London. James set forth with his army to meet him. The people, both common folk and gentry, rallied to William's cause. Plagued by desertions, including the desertion of one of his most trusted commanders, James fled with his family to France. On his way he burned writs convening Parliament in December and, because Parliament could not lawfully be convened unless summoned by writs impressed with the Great Seal, James threw the Great Seal into the Thames River.[354] Crowds in London stormed Catholic chapels, and the [Page 382] mayor ordered that searches for weapons be conducted and that all Catholics be disarmed.[355]
William arrived in London on December 28. Since Parliament could not lawfully be convened, the House of Lords met informally and advised William to summon a convention. In effect, the Convention was a parliament meeting under a different name.[356] The Convention and William engaged in friendly negotiations as to the terms under which the Convention would offer, and William would accept, the Crown. William imposed the condition that he would rule as King or not at all, rejecting a suggestion that Mary, as James's rightful successor, would be sole sovereign and that William would rule as her consort. It was agreed that William and Mary would be joint sovereigns but that William would administer the kingdom.[357]
C. The Declaration of Rights of 1689
The Convention had some conditions of its own.[358] The Convention, one must remember, was Parliament, or as close a surrogate for Parliament as could be convened under the circumstances.[359] As such, the Convention was concerned with parliamentary prerogatives. It wanted to resolve matters involving the allocation of power between King and Parliament. James II had not recognized Parliament's authority to make law. He had, for example, violated the Test Acts, and the court had supported him. "[T]he laws of England are the king's laws," the court had declared.[360] Most relevant to our concerns, James had sought to disarm Protestants, notwithstanding Parliament's laws prescribing who could possess weapons, what weapons they could possess, and under what conditions they could possess them.[361] [Page 383]
Thus, as a condition for making him King, the Convention wanted William to acknowledge Parliament's authority to make law and to agree to abide by those laws within prescribed areas.[362] Therefore, the Declaration of Rights provided, for example, that "[t]he pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal"[363] and that "levying money for or to the use of the crown by pretense of prerogative without grant of Parliament for longer time or in other manner than the same is or shall be granted is illegal."[364] The right to have arms provision is very much in the same vein. That is, it speaks to a right of Parliament vis-a-vis the crown rather than a right of the individual vis-a-vis the state.[365] That provision reads in full: "That the subjects which are Protestants may have arms for their defence suitable to their condition and as allowed by law."[366] [Page 384]
Malcolm says that she finds it "difficult to decide what to make of the new clauses tacked to the end of the article .suitable to their conditions and as allowed by law."'[367] It cannot be the phrase "suitable to their condition" that gives her difficulty. She notes that "[f]or generations citizens had been required to contribute arms to the militia according to their condition, that is, according to their rank and income."[368] Therefore, it must be the second phrase, "and as allowed by law," that perplexes Malcom. The question here, quite simply is: who makes the law? Obviously, the parties did not intend the Crown to determine what arms Protestants could possess. The provision was written in response to James's attempt to arrogate this power to himself; its purpose was to restrict the Crown's authority. There are only two other possible sources of law: Parliament and common law. As Malcolm concedes, there was no individual right to have arms in England before 1689, [369] and, therefore, no such right had been recognized by common law. This leaves Parliament, which had been regulating the ownership of arms for five hundred years, as Malcolm herself catalogues.[370] Thus, the Declaration of Rights, which became the Bill of Rights when Parliament enacted it by statute after William and Mary signed it,[371] did not give Protestants an individual right to have arms; it decreed that Parliament, and not the Crown, would determine the right of Protestants to have arms.[372]
According to Lois G. Schwoerer of George Washington University, the House of Lords added the clauses "suitable to their condition" and "as allowed by law" to make it clear that all Protestants did not enjoy a right to have arms.[373] Schwoerer explains: [Page 385]
First, the idea that all Protestants should be permitted to posses a gun surely terrified the upper House . . . . The potential dangers to property and life from permitting all Protestants to have a weapon were self- evident. Second, the right to possess arms had always been closely connected with the subjects' military obligations, which, since the twelfth century, had been equated with subjects' socioeconomic status . . . . Theoretically, not every person was supposed to have weapons and serve in the military. Third, for over 150 years, other legislation had restricted the possession of guns and other weapons to well-to-do-persons . . . . Fourth, the peers' amendments almost certainly drew inspiration from the game laws, which, since the fourteenth century, had preserved the hunting privileges of the king and the upper classes by restricting the possession of weapons to the wealthy.[374]
"The right to be armed has not worn well," writes Malcolm.[375] "It is no longer a right of Englishmen," she continues. "The curious will still find it in the English Bill of Rights, but it has been so gently teased from public use that most Britons have no notion of when or how it came to be withdrawn."[376] Did some sinister force destroy a fundamental right "so gently" that all of England failed to notice? Hardly. The Declaration of Rights was a critical event in English history because it represented a transfer of power from Crown to Parliament. It remains a fundamental aspect of the English system that the law "sets no limits to the power of Parliament."[377] During more than three hundred years of changing circumstances since 1689, Parliament has been determining what arms Protestants and other British subjects may possess.
None of this precludes the possibility that one hundred years later the American Founders had come to believe in an individual right to keep and bear arms. It does mean, however, that the Founders did not derive such a view from the Declaration of Rights. They understood the Glorious Revolution,[378] saw their [Page 386] own revolution as a parallel endeavor,[379] and, in some instances, modeled the American Bill of Rights on the English Declaration of Rights of 1689.[380] With the most minor of changes, for example, Madison copied article 10 of the Declaration verbatim, where it now stands as the Eighth Amendment to the United States Constitution.[381] Although he did not take it quite so directly, Madison was almost certainly influenced by the right to have arms provision of the Declaration as well. The similarity of circumstance could not have been lost on him. In 1689, Parliament needed to address the fear that Protestants might be disarmed and left defenseless against Catholics. In 1789, Madison needed to allay the fear that the militia might be disarmed, leaving whites defenseless against blacks. Madison followed Parliament's solution. Both the Declaration and the Second Amendment resolve the problem by transferring the power to disarm the favored group (Protestants and the militia) from the distrusted arm of government (the Crown and Congress) to a more trusted authority (Parliament and the states).
III. THE MYTH OF AN INSURRECTIONIST RIGHT
A. Modern Insurrectionist Theory
Timothy J. McVeigh understands insurrectionist theory. When he was arrested hours after bombing the Alfred P. Murrah Federal Building in Oklahoma City, McVeigh was wearing a tee shirt emblazoned with the words and pictures of two of the most venerated figures in American history. [382] On the front was [Page 387] Abraham Lincoln who, more than any other American, symbolizes the permanence and strength of the Union and the federal government. Lincoln was portrayed on a wanted poster. Under his picture were the words that John Wilkes Booth shouted as he leapt to the stage in Ford's Theater: "Sic Semper Tyrannis."[383] On the back of the shirt was a tree with droplets of blood instead of leaves and the words of Thomas Jefferson: "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."[384] These were not the only epigrams McVeigh liked. During the siege at the Branch Davidian compound, McVeigh traveled to Waco to sell bumper stickers.[385] One sticker said: "Fear the Government That Fears Your Gun." Another read: "Ban Guns. Make the Streets Safe for a Government Takeover." These slogans capture insurrectionist theory perfectly. The ultimate check on government tyranny is an armed citizenry, and citizens have the right to keep and bear arms so that they can resist the government when it falls into the hands of traitors or tyrants.[386]
Although insurrectionist theory has always represented one strand of American political thought, its great surge of strength is relatively recent. It started to grow in the late 1960s, and acquired important institutional support when Second Amendment hard liners seized control of the NRA in 1977.[387] What [Page 388] accounts for the rise of insurrectionism? Sociologist James William Gibson tells us that American cultural mythology has always been torn between two images. The first is that of the soldier who defends the nation as part of an official force. The other is that of the warrior who acts alone.[388] The first figure was portrayed by actors such as John Wayne and Gary Cooper when playing Western sheriffs or World War II soldiers. [389] The second figure was represented by figures such as Daniel Boone and Davy Crockett who, as Gibson puts it, are "men of great bravery and virtue who live on the frontier and fight on behalf of civilization, but who themselves never desire to live in the domesticated interior of society."[390]
Gibson traces a metamorphosis in the second figure since the end of the Vietnam War. The new hero is a paramilitary warrior who is hostile to the police or the government because he realizes that "the official power structure is unwilling to fight even though the enemy threatens to destroy America and the values it represents."[391] This archetype was first portrayed by Sylvester Stallone as Rambo,[392] Charles Bronson in Death Wish,[393] and Arnold Schwartzeneggar in Commando.[394] The new hero fought in a new frontier: a borderland of decadence and chaos on the perimeter of a decaying society. Society is decaying because of the incompetence or corruption of governmental officials as well as plots by "evil ones" ¾ drug lords, terrorists, malevolent space aliens, or shadowy dark forces ¾ who "can only be satisfied by the collapse of social stability and all moral values."[395] Increasingly, film portrays chaos as overwhelming society, as illustrated [Page 389] by Dirty Harry,[396] Waterworld,[397] Twelve Monkeys,[398] and the Terminator,[399] Alien,[400] and Road Warrior series.[401]
These two legends, society's soldier versus the paramilitary renegade, may help explain the historical tension between the individual and collective rights visions of the Second Amendment. And the same force responsible for the proliferation of paramilitary warriors in popular culture may be electrifying insurrectionism. Certainly the core themes are the same: a sense of rising chaos, a deep mistrust of lawful authority, faith in the disciplined but renegade gunman. The problem with this system of ideas is that it breeds a profound distrust of not only government but of representative democracy. It undermines respect for constitutional institutions and processes, replacing it with faith in a mythical judgment of "the people." These are dangerous ideas. It is lynch mobs, men in hoods, and people like Timothy McVeigh who deputize themselves in the name of the people. One is reminded of Justice Jackson's statement: "The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."[402] [Page 390]
Sanford Levinson is worried about insurrectionism corresponding with anarchy. "I am not an anarchist," he writes. [403] Nevertheless, he argues, the Founders were insurrectionists. It was the Founders who proclaimed it is "the Right of the People to alter or to abolish"[404] government by armed revolution when necessary; and, whether we like it not, the Founders enacted the Second Amendment to ensure the people had not only the right but the ability to resist government tyranny.[405] Taking rights seriously means that we must honor and preserve rights even when there is a significant social cost in doing so, Levinson argues.[406] There is no doubt that the Founders were revolutionaries, but whether they were insurrectionists is another matter.
B. Were the Founders Insurrectionists?
Conor Cruise O'Brien[407] argues that Thomas Jefferson ought to be ejected from the pantheon of venerated Founders of the republic.[408] His reason is two-pronged: Jefferson was a virulent racist, even by the standards of seventeenth century Virginia,[409] and Jefferson was an insurrectionist.[410] O'Brien worries that Jefferson will give aid and comfort to the contemporary radical militia movement. "[I]f this movement prospers ¾ as I fear it may in the coming century," he writes, "then it will develop its own intellectuals, its own ideologies, and its own press, and [Page 391] these are certain to seek and find legitimation for their revolution ¾ including its excesses ¾ in the writings of Thomas Jefferson."[411]
Jefferson wrote the phrase that appears on Timothy McVeigh's tee shirt[412] in a letter to William Stephens Smith in 1787.[413] Smith, the son-in-law to two of Jefferson's dearest friends, John and Abigail Adams, was a confidant of Jefferson.[414] Jefferson was commenting on Shays's Rebellion, then underway in Massachusetts, and expressing views that he was careful not to make to a statesman friend such as Madison. [415] Shays's Rebellion provides an acid test for insurrectionist sympathies, and a brief description is in order.
Daniel Shays was a veteran of the Continental Army who had fought at Lexington, Bunker Hill, and Saratoga.[416] After the war, Shays returned to western Massachusetts where, along with many small farmers, shopkeepers, and hired hands, he found himself hailed into court by creditors.[417] The war had ruptured commercial relationships. British exporters were no longer shipping goods to America on credit, and were demanding that existing debts be paid in hard currency.[418] To raise money to pay these debts and stay in business, American wholesalers demanded the payment of all debts by retailers. Retailers, in turn, demanded payment of outstanding debts in hard currency by farmers, many of whom had been accustomed to paying debts with crops.[419] The supply of hard currency was not equal to the demand. An economic crisis ensued, pitting creditors against debtors. In the Court of Common Pleas of Hampshire County [Page 392] Massachusetts, where Shays lived, nearly 3000 debt cases were instituted from August 1784 to August 1786.[420]
Rhode Island was alleviating the crisis by issuing, and allowing debts to be paid in, depreciated paper currency. In Massachusetts, however, creditors were in control.[421] Debts had to be paid in hard money, and the courts were executing judgments by foreclosing on land, seizing animals and crops, and even throwing debtors in jail.[422] In addition, the legislature raised taxes, even while the new state constitution increased property qualifications for voting and holding office.[423] This was a bitter pill for people who had gone to war under the slogan, "No taxation without representation." Armed men began demanding the courts adjourn. The local militia was called out to defend the courts, but when a thousand armed men responded, 800 men lined up with those seeking to stop the court from sitting.[424] The crowd freed debtors held in the local jail.[425] When word got out that the state supreme court would meet in Springfield to indict leaders of this insurrection, Daniel Shays led 700 armed farmers and Continental Army veterans to Springfield, where they paraded menacingly through the streets.[426] Shays's ranks swelled as men from the countryside joined his cause.
A second revolution was in the making. Just as patriots had thrown British tea into Boston harbor,[427] just as they had marched with their muskets onto the greens at Lexington and Concord,[428] now they were rallying to resist oppression once more. The Massachusetts legislature enacted a Riot Act to put an end to armed mobs.[429] Skirmishes broke out. Leading a [Page 393] group of 1000 armed men, Shays began marching on Boston.[430] Massachusetts raised an army to meet him.[431]
Jefferson found this bracing. In his letter to William Stephens Smith, written while he was serving as ambassador to France, Jefferson