The "Miliitia" Question Again

Perhaps this would be better in GD, but there is a factual answer. A constitutional lawyer I know said that the “militia” in the 2d Amendment referred to three southern states (SC, Georgia, and Va.), which states had militias to shoot any slaves who tried to escape. He said that those states would not have approved the Constitution without that provision. I’ve glanced over this question in this forum but have not see that possibility mentioned.

Those three states did ratify without the Second Amendment being included.

According to the wiki timeline, Georgia was the fourth state to ratify, and did not include any conditions.

South Carolina was the eighth state, and requested two amendments. Virginia was the tenth state, and requested twenty amendments.

The proposed amendments from South Carolina and Virginia do not appear to have addressed this issue.

http://www.usconstitution.net/rat_sc.html

http://www.usconstitution.net/rat_va.html#part3

That theory is based on Professor Carl T Bogus’s article The Hidden History of the Second Amendment; he discusses it here & there’s a link if you wish to read the original. The thesis has been repeated in less scholarly articles.

I find this article by Paul Finkelman PhD useful. He points out that the Constitution was ratified before any amendments were written. Madison believed that a Bill of Rights would limit the rights built into the Constitution; anti-Federalists wanted a long list of changes & hoped for a second Constitutional Convention. After ratification, as the new government began, Madison proposed a well crafted list of amendments in Congress; they were ratified using the same procedure used since.

Professor Finkelman points out the safeguards for slavery built into the Constitution–and continues:

(At the end of his Presidency, after the War of 1812 in which we won nothing, Madison came out for a professional standing army & navy.)

It’s an interesting topic.

South Carolina, Virgina, and Georgia all ratified the Constitution, without the Second Amendment in 1788. The Bill of Rights (which included the Second Amendment) did not pass Congress until 1789.

Virginia was actually more interested in capturing escaped slaves and returning them to their masters than in killing them. At various points in its history the colony offered rewards ranging from 100 to 1000 pounds of tobacco for the return of escaped slaves. Slave owners, including Thomas Jefferson, placed ads in the Virginia Gazette seeking the return of escaped slaves. That is not to say escaped slaves were never killed. A 1705 law provided that local magistrates could issue proclamations allowing certain specific slaves who were causing damage to property to be killed by local landowners and it exempted masters who killed their slaves in the course of administering “corrections” from punishment. But I see no evidence that Virginia had a “militia” for the purpose of killing escaped slaves.

But whether such militias existed or not, all three states ratified the Constitution without the Second Amendment.

ETA: Sorry, I was reading up about slavery in Virginia and did not check to see if anyone had posted before me. My bad.

It is notable that the Confederate States of America removed that troublesome comma in the Second Amendment, making it clear that being “well-regulated” is "necessary to the security of a free State.

Can you expand on the above?

Often when reading discussions of the term “arms” and to what extent they are protected I wonder to what extent “militias” were designed to be protected.

The 1776 Constitution of Pennsylvania provided

The 1777 Constitution of Vermont had an essentially identical clause (Chapter I, Article XV), but was also the first American constitution to ban slavery. (It did still allow for some form of indentured servitude, see Article I of Chapter I.)

A number of antebellum state constitutions went on to both clearly ban slavery, and also to clearly establish for a militia and an individual right to keep and bear arms. For example, the 1835 Constitution of Michigan provided for the establishment and organization of the militia in Article IX, separately declared in Article I that “Every person has a right to bear arms for the defense of himself and the state”, and flatly prohibited slavery in Article XI.

Militias were found in 19th century America in the north, south, east, and west; and an individual right to keep and bear arms–often explicitly connected to the idea of a popular militia as a desirable alternative to a professional standing army, as in the 1776 Pennsylvania Constitution–was found in many state constitutions in both slave states and free states.

The 2nd amendment perhaps should read more like…
" While a states still organizes militia, the state and its public service has the right to provide arms to citizens of that state that form the militia".
Words were expensive back then, they spent months trying to minimize the word count…

Well I think its clear that the arms are for use in a WELL ORGANIZED ARMY.

The first ten Amendments were most likely originally intended to be a limitation on the powers of the federal government. The problem arose when the Supreme Court later began trying to apply the Bill of Rights to the States. The Second Amendment was important because an attack on the individual rights of a State’s citizens could be tantamount to an attack on the jurisdictional sovereignty of the State itself. Maybe the Second Amendment should have better read, “the right of the people to keep and bear arms shall not be infringed under this Constitution”, as the respective States had their own separate Constitutions with more plenary powers.

I suppose a strict and literal reading of the Second Amendment could be interpreted to apply to the States, but I do not believe this is what was originally intended. For example, the text of the First Amendment reads: “Congress shall pass no law…”

After ratification of the Constitution, the militia was defined differently in each state, but was generally something like “all able-bodied white men between the ages of X and Y, capable of bearing arms.” It was intended to protect against invasion (the Revolution wasn’t that far past, the War of 1812 wasn’t far distant, and some states still had to deal with Indian raids) and civil unrest (as with Shays’ Rebellion in Mass.).

In the South, in particular, the militias were also intended to guard against “servile insurrection.” They played important roles in putting down Denmark Vesey’s (South Carolina, 1822) and Nat Turner’s (Virginia, 1831) slave uprisings, among others. White Southerners were deathly afraid of being killed by rebellious slaves.

It’s worth noting that George Washington became quite frustrated by the unreliability and unprofessionalism of militias during the Revolution, and repeatedly said that regulars were necessary to preserve the infant republic. That’s partly why the Framers explicitly gave Congress the power “to raise and support armies”: http://www.history.com/this-day-in-history/washington-blames-militia-for-problems

That would seem to be an argument that the intent for the Second was not just a limit on Congress; if it was, they’d have used the same formulation.

Not necessarily. “Well-regulated” was widely understood at the time to mean to mean in good working order and effective. A well-regulated watch kept good time; a well-regulated militia was a capable fighting force. Many nowadays misinterpret it to mean carefully controlled, subject to regulations and stucture, or somesuch. And as mentioned above, the militia was essentially ordinary citizens called upon when and as needed. Of course this militia would need a degree of organization in order to function properly, but the amendment is not trying to describe an official army such as we are accustomed to today.

It’s not the intention of the drafters of the Bill of Rights which is relevant, but rather the drafters of the 14th Amendment. That is the basis for the Supreme Court to apply the Bill of Rights to the states.

Yes, the drafters meant the Bill of Rights to apply only to the federal government. That critique is irrelevant however, in light of the fundamental change to the Constitution made by the 14th Amendment.

The 14th Amendment did not automatically provide that all of the Bill of Rights shall apply to the states, but that application of each of the Amendments to the states shall be considered separately (substantive due process).

Before Supreme Court Justice Scalia rendered his deciding vote in a 5-4 decision that this Amendment gives the right for an individual to have arms, an earlier SCOTUS case decided otherwise. (https://www.oyez.org/cases/1900-1940/307us174) In that case, the Supreme Court reversed the district court, holding that the Second Amendment does not guarantee an individual the right to keep and bear a sawed-off double barrel shotgun. With Justice James Clark McReynolds writing for the majority, the Court reasoned that because the possession of a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument.
Hence, the Court did not hold that the 2d Amendment grants the right for an individual, outside of a state militia, to bear arms. The state militia is now the National Guard. I realize that Scalia broadened that interpretation, but that case was 5-4 and was an ill-advised decision. An individual should not have the right to have guns. That should be a privilege only, and subject to all reasonable limitations

I will add that in a subsequent decision, SCOTUS did hold that the 2d Amendment shall also apply to the states.

https://www.law.cornell.edu/uscode/text/10/311

Bump hit a piece of it but that’s just the federal definition of militia members. At the state level you can see both organized militias and unorganized militias in addition to dual status (both federal and state missions) National Guard units. 22 states and Puerto Rico maintain state/territory level organized defense forces (including naval forces in some of those cases.) Most states have unorganized militias provided for either in law or their constitutions. Post 9-11, with National Guard units taking a heavier bite to federal mobilizations, there’s been some move among states to reenergize their militia systems.

In your state of South Carolina:

  • There’s an organized state defense force called the the South Carolina State Guard. If wikipedia is right their last call up was after Hurricane Katrina.
  • There’s also an unorganized militia provided for in state law

That’s written broadly enough the odds are it includes you and most of the people you know. Welcome to the militia! What does that membership mean?

That’s not written in a way that sounds in the least bit voluntary. There might be something else that modifies it. For all the states I’ve been a resident of, it hasn’t been voluntary.

The Bundy loons and their ilk just might be the catalyst for an eventual Supremes re-interpretation of Militia…jus’ sayin’

Except that the decision hinged on whether or not the gun in question had relevance to a militia, not whether or not the individual was a member of one. This means a better reading of that decision would be that owning your grandpa’s hunting rifle isn’t protected under the second amendment, but owning an AR15 is.

Katrina affected La. not SC. Wikipedia must have meant Hugo.