The History and Context of the Second Amendment

Of Guns, Armies, and Slaves

Today I want to talk about the second amendment. Not gun control in general mind you, but specifically the Second Amendment, it’s history and it’s context. The Second Amendment is frequently invoked in Gun Control debates and I feel that it’s almost a hollow mantra, a slogan, something people say reflexively but lacking the kind of well rounded historically grounded understanding that something like that, I believe, merits. 

So the main question I am setting out to answer today, really the only question, is “Why is the Second Amendment in the Constitution?” We have a good understanding of causes and grievances that drove most of the rest of the items in the Bill of Rights to be placed there. The Old World had been full of State Religions and heavy censorship of the press, so the First Amendment addressed those concerns. England had made a common and rather abusive habit of quartering soldiers in private homes, the third Amendment exists to ensure that wont happen. The Fifth Amendment grants the right against being compelled to self incriminate in court, which was a common practice in the Old World. The list goes on.

But why was the Second Amendment there? Was the confiscating or restricting of private gun ownership part of the grievances laid out in the Declaration of Independence? No, it was not. The Colonies had been living under British rule since 1606, more than a century and a half, and private gun ownership had been widely available and virtually unregulated for all of that time. The first efforts by the British towards any kind of gun control in the colonies did not happen until the mid 1770s as part of efforts to prevent Revolution. And while these gun confiscations certainly angered the citizenry, it  only began to occur once revolt was imminent, and was certainly not among the long standing grievances that lead the Colonies to that point.

So then why is it in the Bill of Rights, along side protections directly related to long standing grievances most of which were reference in the Declaration of Independence?

The answer is that the Second Amendment was crafted as a matter of diplomacy between the Northern and Southern states to address two issues that had been the source of underlying tensions for a generation at least, tensions that would only escalate now that the Colonies had won the right to self govern. The Second Amendment exists because the North was afraid of Standing Armies, and the South was afraid to lose it’s Slaves. The final version of the Second Amendment had to balance these two concerns.

Now it is important to remember that at this time, even more so than now, there was a huge debate over what the States should control, and what the Federal Government should control. State governments were not at all eager to give any powers to the Federal government that they did not absolutely have to. So then the question is of course, why not leave gun control  and the arming of a Militia to the individual state governments? Why make that a Federal issue and part of the Bill of Rights at all?

Let’s start with the Militia and the fear of Standing armies, as it is the easier and less controversial of the two prongs. The Second Amendment as was ratified in the Constitution reads: 

“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.”

Now what you will surely have noticed is that at least 90% of the time when the Second Amendment is being quoted the first part of the sentence is cut off. Why is that? The Second Amendment is the shortest and most strait forward of them all, being only one single sentence. Why is the first part, often referred to as the Militia Clause, so often excluded?

The answer is that the first part answers the question, “Why does the Second Amendment exist.” And the answer to that question is not what most people who quote it in the modern world want it to be.

It is well known and recorded that in the those early days of the new nation that there was strong anti-military sentiment all over the nation. Not anti-military in the sense of thinking poorly of soldiers and generals, but rather that there should be no such thing as a standing Military. Most viewed standing armies as being a massive liability and something no nation of free people should ever have. A permanent standing Military was expensive, it lead to the creation of a Military Caste, and was prone to being used against the people should a less than noble person every assume the office of President. 

Here are a few quotes from some of the individual State Constitutions that were ratified before the general US Constitution and many of which directly inspired portions of the US Constitution. 

South Carolina, which starts off almost identical to the US version:

“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. As, in times of peace, armies are dangerous to liberty, they shall not be maintained without the consent of the General Assembly.”

Here is Vermont:

“That the people have a right to bear arms for the defense of themselves and the state, and as standing armies in times of peace are dangerous to liberty, they ought not to be kept up.”

And most importantly we have Virginia, and I will explain why Virginia was so important here in a minute:

“That a well regulated militia, composed of the body of the people, train to arms, is the proper, natural, and safe defense of a free state; that standing armies, in times of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be in subordination to, and governed by, the civil powers.”

So as you can see, the notion of standing armies was an unpopular one in the early US. But of course you did occasionally need to be able to respond rapidly to situations with military force. So the solution was the Militia that keeps being mentioned above.

The idea of the Militia was that every able bodied man in the nation would own and maintain, at their own expense, a basic infantry kit. A musket with power and rounds, boots, and bed roll, provisions, etc. In the event of a revolt or a riot or native attack, the militia would be called out to address the situation. If the problem was too big for the Militia to handle, then the Militia could at least try to hold the front while Congress levied an army. These armies were supposed to be commissions only when needed, only to deal with a specific situation, then disbanded. 

But again, why did that need to managed Federally? Why not leave that up to the states? The answer is, as many quickly began to realize, the Militia system doesn’t work unless everyone participates, and unless participation is mandatory. There were too many scenarios in which a voluntary and state run Militia left the new nation exposed to tremendous harm. Critics pointed out that if one State elected to outlaw guns, or to make their militia merely voluntary rather than mandatory, or to not participate in the Militia program at all, or to decide a particular fight didn’t interest them and not answer the call, then any military threat arising in that state would eventually become the burden of the neighboring states. It was also pointed out that if a state not participating in the militia happened to be a border state or be home to a vital port, then that would be an enormous nation security risk.

It was concluded that the only way for a Militia to be effected is if it was mandated at the Federal level. This is why the North wanted the Second Amendment. To ensure that the Militia could not be hindered or impeded by any local or state government opting out of gun ownership and therefore their ability to participate. 

However, not everyone approved of the Militia. Many thought untrained part time militia were ill equipped to the task of military response, and these critics turned out to be proved right in short order. As you might be aware, the US no longer uses a Federal Militia. The nation switched to relying primarily on a permanent standing army by the Mexican American War in the 1850s, with the federal militia being officially disbanded in 1903 and replaced by the National Guard. The reasons for this are a great topic for a whole other presentation, but in short the Militia did not work. It was slow to respond, poorly trained, poorly equipped, and preformed poorly virtually every time it was called out, and one of the reasons most relevant to this discussion is that time and again large numbers of Militiamen showed up for duty who did not own a gun, forcing the government to scramble to arm them.

The study “Counting Guns in Early America” released in ___ concluded by examine property inventories from the time that the gun ownership rate overall was about 55% only about 10% higher than the gun ownership rates among adults today. Certainly gun ownership was far to low to reliably call on the Militia as about half of the men would show up unarmed.

You see, contrary to the rugged frontiersman image we associate with the US at that time, gun ownership was not nearly as ubiquitous as you might think. Most of the population even more so then than now lived in the urban centers, and did not need guns for hunting game or protecting their homesteads. Guns simply were not the common item hanging above every fireplace like we imagine.

That is with one very notable exception that leads directly into the next main reason for the existence of the 2nd Amendment. Among estates that also owned a large number of slaves, and in parts of the country where large scale plantation farming with slave labor was common, gun ownership was 81%.

The reason for this extremely high gun ownership rate among plantation owners is something that might not be so obvious now, generations removed from the practice, but it was a constant nagging fear in the back of the mind of every Southerner at the time: Slave Revolts.

We are all familiar with the image of the African slave in the US south, living in bondage, being subject to mistreatment, and ultimately trying to run away, but something that is depicted very seldom in our common narrative, but which has been a reality for every slave owning culture since history began, is that people in bondage don’t only attempt to flee, sometimes they rebel. There was an ever present fear among rural plantation owners in the South, who’s next White neighbor may be ten miles away, that they would be awoke to the sound of shattering glass and shouting in the middle of the night, and smell smoke, and realize all to late that their slaves had revolted and were burning down the plantation house.

And this fear of a slave revolt was not misplaced. In many rural parts of the South the slave population outnumbered the white population and in the State of Virginia as a whole, slaves accounted for almost a third of the entire population of the state, over a quarter of a million people. In a paper called “The Hidden History of the Second Amendment” Professor Carl Bogus identifies over 200 separate slave revolts, involving the violent uprising of at least 10 or more slaves, in the south. Most notable on US soil was the Stono Slave Rebellion in 1739 in South Carolina. The Stono revolt involved a small army of almost 100 salves burning plantations and killing nearly 50 White militiamen and slaveowners before being defeated. Meanwhile in the year of 1785, only a few years after the ratification of the US Constitution, the largest slave revolt in history took place in nearby Haiti.

So due to the massive number of people being kept in bondage, and the ever present risk of Slave Revolts, almost every Southern State instituted what were known as Slave Patrols. These Slave Patrols were tasked with keeping Slaves from organizing in secret, running away, or revolting. They were authorized to inspect slave housing, to stop and detain any slave found off of their plantation without notice, and even allowed to whip slaves without consent of the owner if they deemed it necessary. And what force was used to carry out this duty of policing the slave population? The well regulated militia. Both Virginia and South Carolina outright used the State Militia for that purpose, while other States, like Georgia, founded a separate Militia for the explicit purpose of proving constant slave policing.  

Now the South was very nervous about the Second Amendment, which mandated Militias at the Federal level. While the South approved of militias, and in fact deemed them to absolutely vital to preserving their way of life, what they did not like about the Second Amendment was that it mandate Militias at the Federal level and put Militias under the ultimate control of Federal power, rather than State control.

The context here is that the Colonies have won their war for independence, but are now attempting to form a single nation and get a majority of the original 13 colonies to all agree to one Constitution under which they could agree to live. No easy task. James Madison set out with his eyes on Virginia, to convince the Virginian legislature to ratified the new Constitution and officially join the Republic. Virginia had, by a large margin, the greatest population, the most wealth, the most power, and the most influence of the original 13. Virginia could almost have founded its own small nation with the power and influence they wielded. The US could not have succeeded without Virginia’s buy in, and enormous effort was undertaken to appease the Virginians. But Virginia was deeply afraid of the North using the Second Amendment to subvert.

Something that we often forget in US history is that the cultural division between the north and the south on the issue of Slavery was not a fight that broke out suddenly in the years preceding the Civil War. The division over the issue of Slavery had been present in the United States before it even existed, prior to the Revolution. In fact in the Declaration of Secession made by Georgia when they joined the Confederacy, they explicitly state the “The question of slavery was the great difficulty in the way of the formation of the Constitution.” And that “it was plainly apparent that slavery would soon disappear from what are now the non-slave holding states of the original 13.”

The fear of Virginia was that if the Federal Government had the ability to control the Militia, that they may use that power to undermine the institution of slavery by either A: calling the slaves into militia duty and then freeing them while under Federal custody, or B: calling all of the White men into militia duty leaving the South vulnerable to large scale slave revolt.

One particularly fierce opponent of the Constitution in general and the Second Amendment in particular was Patrick Henry, Patrick Henry of “Give me Liberty or Give me Death” fame. During a speech before the Virginia Convention in 1788 Patrick Henry expressed the following: 

“In this state there are 236,000 Blacks, and there are many in several other States, but there are few or non in the Northern States. And yet if the Northern States shall be of the opinion that our slaves are numberless, they may call forth every nation resource. May congress not say that every black man must fight, did we not see a little of that in the last war? Were we not so hard pushed as to make emancipation general?”

Later on in the same speech he went on to say:

“They will search that paper and see if they have the power of manumission. And have they not sir? Have they not power to provide for the general defense 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? There is no ambiguous implication or logical deduction. The paper speaks to the point. They have the power in clear unequivocally terms and will certainly exercise it.”

And Patrick Henry was no fool, as something very much like what he feared is eventually what Lincoln did a few generations later.

So the North wanted militias as opposed to standing armies and needed them to be federally controlled in order to provide for the common defense. The South approved of Militias but didn’t want them to be federally controlled as they were rightly afraid the North would seek to undermine and abolish slavery. How did the Second Amendment finally assuage both of these concerns to appease both parties?

Semantics.

You see the Constitution, as you might expect, went through several drafts and revisions before the final form was ratified. An earlier draft of the Second Amendment read that “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…”

Very similar to the final version with one major difference, the word “Country” as opposed to State. After assessment and advisement by committee, Madison changed the language from defense of “Country” to defense of “State”, and with that small change to placate the South, the Constitution was eventually ratified. 

Now of course it is unlikely that this small change of wording is the only reason that Virginia got over it’s misgiving about the Second Amendment and ratified. The early days of US politics, even more so that now, were full of back room wheeling and dealing, and we will probably never know all of the dark deals that went into getting so many people to agree to one governing document. Perhaps the fact the Virginia had just recently won the fight to have the crown jewel of the new nation, the new Capital City, places on their door step, perhaps it was something else, but with that ratification the North got it’s Militia and the south got to keep it’s slave patrols, and for a time the issue the was at least tolerably resolved.

But here is the problem: When you know this history, when you are able to answer the question “Why is the second amendment in the Constitution at all?”, you are confronted by the fact that nothing the Second Amendment was written to address exists today. All applicability and context for it has been eliminated with time. The US no longer maintains a citizen militia. Any and all armed service members that do exist are supplied their weapons by the state. Institutional Slavery ended a century and a half ago. Neither the north nor the south got their way in the end. The Slaves did all escape, and a permanent standing army was established. The Second is an arrow pointed at a target that no longer exists.

And educated Conservatives know this. They no the Amendment no longer has any applicability as it was originally intended. That is why they always start their quote of the Second Amendment in the middle, pretending like the first half of the sentence doesn’t exist. They ignore the context and try to convince themselves and everyone else that what the Second Amendment is actually some for of anti-Government permission to rebel. And don’t get me wrong, the founding father and most of their contemporaries were revolutionaries. Such sentiments were common at the time, but that is not why the Second Amendment was written. Patrick Henry was fiercely revolutionary, with plenty of speeches and quotes about the right of the people to take up arms against their government, but he staunchly opposed the Second Amendment in debate at the time with the person who wrote it. Should that not stand as almost irrefutable evidence that the Second Amendment is absolutely not about arming a people to control their own government. 

Any such claim is a blatant act of revisionist history. You ought not fall for it.