An Unconvincing Case That Slavery Taints the Second Amendment

By Charles C. W. Cooke

Friday, May 25, 2018

In the New York Times, Carl Bogus attempts to taint the Second Amendment by linking it to America’s greatest historical evil, slavery. I say “attempt” because Bogus doesn’t make an argument so much as he insinuates, gestures, and implies perfidy with a wink. Where there should be glue, there is handwaving instead. Where one would expect a joint, there is an ellipsis, a “may be,” or a hard-turned “I believe it likely.” As is typical of the genre, the result is as transparent as it is shoddy.

Bogus’s central claim is that the Second Amendment’s “genesis was, at least in part, a concern with preserving a form of governmental tyranny?” You’ll note the cop-out question mark in that sentence — a trick that is also used in the title, “Was Slavery a Factor in the Second Amendment?” To get to this explosive conclusion, Bogus selectively recounts the “background” against which the Bill of Rights was passed, and then, in a remarkable jump, proposes that the context he provides must serve as the best explanation for why at least one state, Virginia, ratified the Bill of Rights, and with it the Second Amendment. Such as it is, Bogus’s case runs like this:

1) That Virginia was a slave state; and

2) That Virginians were scared of slave rebellions; and

3) That some Virginians were worried that the new Constitution would prevent them from using their militias to address those slave rebellions; and

4) That James Madison, who wrote the Bill of Rights, was a Virginian, and

5) That, like any politician, Madison wanted to please those whom he was asking to elect him; so

6) That in an attempt to please Virginians, who were worried about slave rebellions, Madison included the Second Amendment in the federal Bill of Rights; and

7) That Virginia voted for that Bill of Rights because it wanted the Second Amendment; therefore

8) The Second Amendment is stained by slavery.

There are a number of fatal problems with this argument. For a start, there is no evidence that Madison believed his Second Amendment to be primarily, or even in part, a means by which the Southern states might prevent slave rebellions, which is why Bogus is reduced to connecting the two sections of his essay with the words “I believe it likely that Madison sought to correct the problem Henry and Mason had railed against in Richmond” rather than with quotations from the ratification debates, from the many contemporary observers who wrote about the provision, or from Madison’s other writings on the question of an armed citizenry. Introducing his draft Bill of Rights to Congress in 1789, Madison explained that he had included only those “rights against which I believe no serious objection has been made by any class of our constituents.” And indeed he had, for although there continued a fierce debate as to the wisdom of muddying the enumerated-powers doctrine — some insisted that a Bill of Rights was unnecessary because the federal government possessed no authority to violate the people’s rights in the first instance — nobody rose to complain about the individual rights contained within his proposal, nor to cast the Second Amendment (originally the fourth) as a scheme contrived by pernicious Virginians. Well-versed as they were in the natural rights of Englishmen, his peers understood what he was doing, and they considered it substantively uncontroversial.

And why wouldn’t they, when the right had such a long and broad pedigree? The 1689 English Bill of Rights — to which so many colonists had appealed warmly when appealing to the Crown — contained a right to bear arms that had precisely nothing to do with human bondage, and that had never been linked to it in either the British or colonial imaginations. Moreover, nothing in Blackstone’s widely read discussion of that right so much as touched on the issue (nor, for that matter, was it addressed by the great jurists who succeeded him). To those familiar with the antecedents of the federal right, it should come as no surprise that, before 1791, three of the four jurisdictions that boasted Second Amendment–style provisions within their constitutions were in the North (they were Pennsylvania, Vermont, and Massachusetts; North Carolina was the only Southern state that had codified such a right). If, magically, the idea of the private ownership of arms had become linked to bondage at the moment it hit North America, one would expect to see a connection between its adoption and the spread of slavery. In fact, one sees the opposite.

In 1777, Vermont protected the right to keep and bear arms in the very same document that it used to ban slavery. Interestingly, the drafters of that charter simply copied and pasted the provision that Pennsylvania had adopted the previous year (Pennsylvania abolished slavery in 1780):

That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power.

Presumably, if Pennsylvania had encoded this protection in order to shield its citizens from slave uprisings, Vermonters would have known that, and would have considered the provision unnecessary in a document that decreed that all men were to be free. That they included it anyway speaks volumes as to how they saw the right. In Massachusetts, too, there was an overlap between the protection of the right to bear arms and the abolition of slavery. Massachusetts added its right to bear arms in 1780, in the same constitutional document as it declared that:

All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

One year later, a judge ruled in Brom and Bett v. Ashley that this provision mandated the emancipation of a pair of slaves who had sued for their freedom. Two years after that, the state’s supreme court applied the ruling to everyone. Naturally, one constitutional provision did not cause the other — not even close. But insofar as the two ideas coincided, it was with abolitionism, not slavery, that protection of the right to bear arms most commonly overlapped.

Its historical weakness aside, Bogus’s essay exhibits another fatal problem: to wit, that even if we were to accept his insinuations as facts, his conclusion would remain wholly meaningless. For the sake of argument, let’s stipulate that Virginia’s motives for wanting the Second Amendment were, indeed, impure. What, exactly, would that tell us? The most charitable reading of Bogus’s view is 1) that for a host of different reasons, the original states feared that Congress would disarm their militias; 2) that those states wanted what became the Second Amendment to ensure that that disarmament didn’t happen; and 3) that while many states were sincere in their appeals to ancient liberty, Virginia’s reason for supporting the addition — the desire to quell slave uprisings — was an ugly one. But that an institution has sometimes been abused is not, ipso facto, a mark against its validity. In the antebellum republic, the Slave Power in the South was happy to use any tool at hand in order to get its own way. If slaveowners had the numbers on their side, they made lofty appeals to democracy. If they didn’t, they appealed passionately to localism. The men who saw fit to corrupt the Declaration were nothing if not protean.

To reiterate: I do not for a moment buy Bogus’s case about Madison’s intent; that the right to bear arms came from England and was so widely protected in the North illustrates how widespread the idea had become in America. But even if he were right, the most that one could conclude would be that one of the original states had bad motives — a conclusion that is neither shocking nor especially interesting. That neo-Nazis are protected by the First Amendment does not indict the First Amendment, just as that criminals are protected by the Fifth does not call that bulwark into general question. Bogus asks whether we’d “think differently about the” Second if we took his claims at face value. The answer, I’d hope, would be no. Happily, though, we don’t have to.