I take your point, of course, but I don’t think you’re really addressing my argument. Is OP or anyone else claiming that anti-insurrection is the sole possible motivation for these amendments, as opposed to merely the chief motivation for the Second Amendment?
I don’t think Henry’s speech supports your posit given that the militias already existed, and disarming/disbanding them wasn’t being discussed. It’s specifically about the ability to ‘call up’ the militias, who possessed that power, and in what situations they had it.
Well, of course slavery was part of the backdrop of the Second Amendment; it was part of the backdrop of everything in America. But, the right to keep and bear arms has roots in Anglo-American political and constitutional thought at least as far back as the 17th century and the 1689 English Bill of Rights in the wake of the “Glorious Revolution”:
And the immediately preceding clause of the English Bill of Rights, which indicates a likely connection between a belief in a popular right to arms and a distrust of professional armies:
This connection was often seen in later guarantees of the right to keep and bear arms (including the Second Amendment, of course).
Of course the English Bill of Rights guarantee of a right to arms was pretty heavily qualified (“Protestants…suitable to their conditions and as allowed by law”), and being only an Act of Parliament, it was never constitutionally entrenched in the way a provision of (or amendment to) a written constitution is. But the notion that the people have a right to be armed wasn’t something that just sprang up out of nowhere in 1791.
So, such ideas about the people having a right to arms were in English political thought previously connected with the idea of resistance to tyranny from above in the form of a standing army; William Blackstone in his Commentaries on the Laws of England also discusses a right to arms as being connected to “the natural right of resistance and self-preservation” (Book 1, Chapter 1, “Of the Absolute Rights of Individuals”; again, this is the rather heavily qualified–though at that stage still not completely nonexistent–English idea of a “public allowance, under due restrictions” for the people to have “arms…suitable to their condition and degree”.)
With all of this Anglo-American history, from both before and after the adoption of the Second Amendment, of wanting to protect a right of the people to be armed as a collective defense against tyranny and as an individual defense against unlawful violence, it seems a real stretch to say that the “chief motivation” for the Second Amendment was as a cryptic pro-slavery measure.
These were people who had had foreign soldiers forcibly billeted in their own homes. These were people who used the word Monarchist! as a vile epithet. These were people who had tried to force Washington to make do with militias and who, in the end, sent a lot of Continental Army soldiers home without the back pay owed to them. They took every opportunity they could to repeat “no standing army.”
Let’s see. First, they had rebelled against their own government, so they were aware that others could band together to rebel against them. Very aware. The first major insurrection in the new country was the Whiskey Rebellion, which was a northern, rural rebellion that included a number of Continental Army veterans. The founding fathers did not need to wait for Pogo to know that the enemy was them.
Second, States did not trust other States. I don’t think there’s ever been an invasion of one State by another - well, except for that Civil War thing (Bleeding Kansaswas only a territory), but there was some saber rattling.
Third, they were aware of the dangers from England and France and would have wars or quasi-wars with both fairly soon. Spain also held Florida and territory further west. Although the wars with Spain would be later.
Parallel to these three fears were the fear of Indian attacks or wars and the fear of slave rebellions. Indian wars were recurrent, as were slave rebellions, although the slave rebellions tended to be smaller, or in the Caribbean.
It’s not that the fear of Indian or slave attack wouldn’t have been enough for the founding fathers to have wanted to preserve gun ownership; it’s that even without fear of Indians and slaves they would have made Militias Good!/Armies Bad! a pet slogan.
Maybe we need a some evidence whatsoever that a slave insurrection was even hinted as a major motivation for the second let alone the chief motivation. Quite obviously, it wasn’t the chief motivation in anti-slavery states and wasn’t mentioned as a chief motivation by any historically relevant people quoted so far. I doubt anyone here doubts slave owners would have used their guns in the case of a slave revolt but everything I see seems to enforce the commonly held view: it was for self defense and the common defense against tyranny/evils of a standing army. The thread title is “The 2nd Amendment was written to calm fears about ending slavery”, and we have nothing but word games to back it up.
I think pages 349-354 of the paper I linked earlier show it was a major motivation.
Patrick Henry observed that if only the federal government can call forth an armed militia, then the states could not defend themselves from slave insurrection. Madison responds by assuring the Virginia convention that the Constitution would not prevent states from arming their militias.
I find the argument a little tendentious, but I think most of you are dismissing it far too blithely.
MEBuckner: I’d be curious to hear your take on Bogus’s arguments on the common law history.
Nothing in the Second amendment describes which level of government is in charge of the militias. Why are Patrick Henry’s comments on that subject relevant to the second amendment’s purpose?
Almost certainly it refers to both slaves and indentured servants. It’s possible it refers to apprentices as well, though that is much less likely.
Well, as the article notes, there was an armed rebellion (by white people) against the state government in Rhode Island in 1842, which led to the new state constitution (including the right to bear arms) in 1843.
The history is quite clear–especially at the Virginia ratifying convention–that this was all about who controlled the state militias and whether their role might be usurped (or merely neglected by) the federal government in its creation of a national militia or a standing army.
Here’s Henry:
I think the only real debate is whether the principal value of the state militias was in preventing federal tyranny, suppressing domestic insurrection (chiefly slave insurrection in the south), or arming men for general welfare and self-defense.
But here too Henry’s comments are instructive:
So I think it’s a pretty fair characterization that the leaders of the Virginia convention at least were concerned that their state militia might be prevented from putting down slave insurrection because of federal control over how they are armed and when they may be employed. The Second Amendment addresses at least part of that concern.
Now, there’s plenty of room to argue that Henry is an outlier, or that slave insurrection was not seen as the chief threat. In particular, while there is a lot of historical evidence that slave insurrection was seen as the #1 threat, this really ramped up after the Haitian revolution. Before the Haitian revolution, I think the concern was as much insurrection as the federal government imposing abolition on the South. If that’s right, then it gets very difficult to untangle motivations involving preventing federal tyranny from slavery motivations.
Richard: Is it possible that some folks are having trouble understanding this because, when the constitution was ratified, states and localities did not have police forces that were charged with keeping domestic order? People might ask: Why does a state need a militia? If they had a police force or something like it, they wouldn’t, but the fact is, they didn’t have a police force.
A defense of the institution of legally sanctioned slavery is probably one of several ancillary justifications for the right to keep and bear arms, but as others have pointed out, that right already existed in at least one Northern state’s Constitution. The Second Amendment was a reaction against giving power to a central power that could rival and threaten individual states. It’s true that Southern states were preoccupied with the threat of slave rebellion, but this wasn’t lost on northerners as well, many of whom at least sympathized with the concerns of Southern whites even if they had objections to the slave-based economy of the South.
Regarding Miller, both erroneous and resolved against his position. Here is what Bogus says about Miller in 1998:
(omitted internal footnotes, and added bold).
For the bolded part that says “federal courts”, Bogus cites Miller with the following footnote:
(omitted internal citations)
*Miller *did not adhere to the collective rights interpretation. If the 2nd amendment right was predicated on being a member of the militia, then the court could have dispensed with the case simply by noting that Miller was not part of the militia. The correct way to interpret Miller would be to recognize that the case was about the nature of the arms in question, namely the short barreled shotgun, not the person wielding it. Heller recognized this when it said:
Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.
So when Bogus claims that federal courts consistently adhered to the collective rights interpretation, that view has been repudiated by the Heller court after he made his claim, and based on the evidence, was not accurate at the time he made the claim. I flesh this out because given that, and his membership on the board of various gun control groups, it colors his conclusions.
I’m up for a busy week at work so I’ll have to get back to the actual paper and its slavery implications later.
You don’t need to imagine so much. It’s worthwhile to look at the Articles of Confederation, IOW the actual constitution that was actually in effect and that actually shaped the understanding of the people trying to supersede it.
That does seem to make it clear that the purpose of the 2nd was to ensure an effective military force on short notice without having a standing army (something that was soon created anyway). No inferences that it’s really about self-defense or slave rebellions, despite its actual explanatory text, need be made.
Bogus’s reading of Miller, if not correct, is at least very reasonable, notwithstanding Scalia’s efforts to avoid having to overrule Miller in Heller.
The Miller court reasoned as follows:
Now, maybe you think Scalia is right and Breyer is wrong about what that language meant. I find the argument that the Court wouldn’t have needed to address X to be quite weak, since courts quite often make arguments not strictly relevant to their holdings. But Bogus’s is certainly not an unreasonable reading of Miller.
As for his institutional affiliations, sure. He favors some level of gun control, clearly. But the same ad hominem could be made against Scalia. I’d be more interested if he were demonstrated to have made some plain legal or historical error.
To be clear, I don’t think his historical analysis is all that great. It’s just as tendentious as Scalia’s historical analysis. But I also don’t think it can be so easily dismissed.
A primary problem with this and any theory that holds that the 2nd was intended to secure “militia rights” for states, is that no example exists of a state ever claiming this immunity – even when the fed’s incurred upon state militia powers. From 1820 on, federal preemption of state militia powers was sustained (Houston v Moore). There was no mention in Houston or any case of any protection of state militia powers afforded by the 2nd Amendment – the powers granted to Congress in clause 15 & 16 are not diminished or restrained by the 2nd Amendment.
Where was this theory during Reconstruction when Congress disbanded southern states’ militias?
The action of disbanding official state militias was in response to their role as enforcers of The Black Codes with arms prohibitions for Blacks being the most enthusiastically and brutally enforced . . . How can your theory be true when the time came to claim the right to operate their militias free of federal interference, no state claimed the immunity?
How about the federalization of the state guards in 1903? Not one state wanting to preserve their powers thought of claiming these supposed “2nd Amendment rights” to repel the federal takeover of their militias?
Your theory has zero presence where it is expected to actually perform as claimed. It’s only reason for existence is as an alternate theory to the individual right “standard model” interpretation of the 2nd Amendment.
Interesting.
But it seems like your argument about Houston might misunderstand Bogus’s (and Patrick Henry’s) argument.
Henry’s concern, as I understand it, was that in the absence of a clause guaranteeing to the states their right to arm their militias, the various powers in Article I would be read to be exclusive to the federal government. Unable to arm the militia themselves, they would have to appeal to the federal government for upkeep. He and his compatriots also had related concerns about the state militias being deployed in national service, or being prevented from being deployed in insurrection, but those concerns presumably were not answered by the Second Amendment like the arms issue was.
That view on the role of the Second Amendment would not seem to be implicated at all by Houston, would it?
Bogus doesn’t just misinterpret, he misrepresents.
Some rebel states specifically called out their RKBA exclusively for white men.
Arkansas: “That the free white men of this State shall have a right to keep and to bear arms for their common defence.”
Tenneesee: “That the free white men of this State have a right to keep and to bear arms for their common defence.”
To be readmitted to the Union they were forced to rewrite their constitutions to remove the discriminatory language and conform with the federal 2nd Amendment.
LOL. What exactly is Bogus’ “reading of Miller”? He never really gets to any specifics parsing Miller and telling us what each sentence means and its legal implications and effect . . . Bogus quickly (lazily) falls into arguments focused on the “reading of Miller” of various lower federal courts.
At this point in 2nd Amendment law, those lower federal court “readings” of Miller (and Cruikshank and Presser on the point of incorporation) have been invalidated and abrogated by higher authority (*Heller *and McDonald).
To be having a discussion today that Bogus’ “reading of Miller” is valid on any level, is foolishness.
Why would Scalia need to purposely avoid disturbing Miller? All Heller did was invalidate lower federal court “collective right” inventions / perversions of prior SCOTUS rulings (beginning with Cases and Tot).
Sure, Miller is poorly written but it does cite the primer for the holding.
Trying to understand Miller (or even discussing it) without acknowledging and including Aymette in the discussion, is stumbling in the dark.
And? . . .
Yep.
However- it is interesting tho to see this. The idea seems to be to poison the Second Amendment by linking it to Slavery. It is another backdoor method of Gun Control.