A recent political cartoon showed an ayatollah in Iran pointing a gun at an unarmed citizen, who feebly tried to respond with a pointed index finger. It implied that if Iranians had gun rights they’d have a better chance of standing up to tyranny. The implication was that our Second Amendment had been written for a similar purpose: to protect ordinary people from governmental oppression.
But whatever merits or problems one might see in the Second Amendment today, it’s worth remembering that it was not conceived to enable people to stand up to government, but for precisely the opposite purpose. James Madison wrote the Second Amendment to reassure Southern states that Congress would not disarm their militias, which they deemed to be necessary for slave control. Thus, the amendment ensured that people in power could continue to oppress, not the other way around. For Iran today, this would be akin to guaranteeing that the ayatollah shown in that cartoon would always have a gun, while the citizen did not.
Compromises to ensure ratification
The Constitution required ratification by at least nine states. Eight had ratified it, but anti-Federalists in other states held sway. Virginia was divided, with George Mason and Patrick Henry arguing against ratification. They raised the specter that Congress might refuse to call forth the militia to suppress a slave insurrection or could even disarm the Southern militias.
Although the Federalists prevailed, James Madison’s career was damaged. In order to resurrect it, he promised that he would support adding a bill of rights including this provision: “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.”
Carl Bogus (1998) shows that Madison wrote the amendment for the specific purpose of assuring his constituents that Congress could not use its new powers to deprive the states of an armed militia. Their primary concern was not that Congress would disarm the militia and thereby prevent hunting, self-defense, national defense, sport shooting, or resistance to governmental tyranny. Instead, it was that disarming the militia could bring an end to slavery. Despite later revised interpretations, the amendment did not grant individuals a right to keep and bear arms for random purposes, but instead for “well regulated” militias whose essential purpose was to prevent a slave rebellion, as happened in Saint-Domingue (now Haiti) just three years later.
As in any political arena, there were multiple interpretations and motivations at the time, as well as misunderstandings due to making sense of these more than two centuries later (Amar, 2005). A major concern in 1788 was of course the war against England and fears about future invasions. But it’s also clear that a driving force was the desire to preserve the institution of slavery, thus using guns to maintain tyranny, not just to resist it.
Amar, Akhil Reed (2005). America’s Constitution: A biography. New York: Random House.
Bellesiles, Michael A. (2002, July). Constitutional meanings. Common Place, 2(4).
Bogus, Carl T. (1998, Winter). The hidden history of the second amendment. UC Davis Law Review, 31(2).
Douglass, Frederick (1881). Life and times of Frederick Douglass, his early life as a slave, his escape from bondage, and his complete history to the present time. Hartford, CT: Park.
Mencimer, Stephanie (2008, March). Whitewashing the Second Amendment. Mother Jones.
Spitzer, Robert J. (2000). Lost and found: Researching the Second Amendment. Chicago-Kent Law Review Symposium on the Second Amendment, 76.
Good points, Eric, and thanks for your comments.
The issues of whether the first clause is binding, whether the right is individual or collective, what “militia” means exactly, and so on, have been much debated, and I don’t know enough to resolve them or to decide among the constitutional scholars on various sides of the debates.
The point that the militia was to include every able-bodied man (except slaves of course), seems generally accepted, but doesn’t necessarily imply an individual right. Many scholars have argued that that individualist interpretation appeared only in the mid-20th century.
In any case, I found Amar’s book to be an interesting and helpful summary on this and other Constitutional history. But he doesn’t address the more radical point that Carl Bogus brings up. The more I’ve thought about it, the more plausible it has seemed that appeasing the South’s interest in controlling slaves was a driving force, and a reason to include the “bear arms” provision right after the big First Amendment.
Short of another amendment, we could go a long way towards a rational gun policy by closing some major loopholes on purchases, background checks, types of guns, and the like.
Thanks for the post.
I’m no fan of guns, and have little patience for arguments in favor of an armed citizenry as a deterrent for crime, which is really what our gun debate is concerned with these days. Certain groups who need not be named will bring up the specter of an over-oppressive government, but I think that is really a red herring anymore.
That said, we do have this rhetorically troublesome amendment to the Constitution which, for good or ill, is the law of the land. It’s such a curious bit of legal writing, though. The framers don’t say “Congress shall make no law prohibiting the keeping and baring of arms for maintaining a well-regulated militia.” It would have been much clearer, but they didn’t use this language even though it is much closer to the language used in the first amendment.
In talking about the militia, I wonder what your response would be to Justice Scalia’s arguments concerning the use of “militia” in the amendment. Specifically:
1) that the framers did not intend the preface to be binding as the sole reason for the general right laid down (he offers historical reasons I will not go into here),
2) that the “militia,” in many cases consisted of every able-bodied man capable of serving in the militia (and thus conveys a personal right), and
3) that to interpret the preface as binding on the operative clause would be redundant, since the U.S. Constitution already gives Congress the sole power to “provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.” (Art. I, Sec. 8, Cl. 8)
For my part, despite my severe misgivings, I am so far forced to find Justice Scalia’s reasoning (which I am greatly simplifying) convincing. And I fear this means that an additional constitutional amendment (which is unlikely to say the least) may be all that will settle this satisfactorily.
Eric (who still wishes he took a class with you at GSLIS)
Thanks, Chip. I just learned something new from your post!