originally published at The Beacon

An article at Truth Out by Thom Hartmann argues that the Second Amendment was ratified to preserve slavery, particularly to empower the state militia that used arms to enforce the institution through slave patrols. I wrote to Jeffrey Rogers Hummel, a historian who has written at some length about the history of American militia and whose working paper Deadweight Loss and the American Civil War: The Political Economy of Slavery, Secession, and Emancipation extensively discusses slave patrols as a key method by which slaveowners socialized the costs of slavery’s enforcement.

Hummel’s response to the Second Amendment slavery theory? Don’t buy it. Hartmann’s argument is overstated “to put it mildly.” In particular, the argument suffers from “presentism, back-dated from the Civil War, where everything that happened prior in U.S. history was driven by slavery.”

Hummel takes issue with some of the basic historical background in the Hartman piece, particularly “with the claim about ‘hundreds of substantial slave uprisings’ prior to the Constitution’s adoption. This would astonish most serious colonial historians.” Hummel explains the confusion:

Hartmann lifts this claim from the Carl T. Bogus article he cites, which in turn relies on Herbert Aptheker’s 1949 book, generally considered exaggerated even at the time it was published, before much additional research on slave revolts had made historians curious about their relative infrequency when compared with other slave societies in the New World. Nor were the few serious slave revolts during the colonial period confined to the South, with two in New York City (1712 and 1741).

Indeed, contrary to the reductionists, maintaining slavery was not the primary motivation lurking behind everyone’s actions at the Constitutional Convention.

The fact of the matter is that the Slave Power had not fully coalesced into a cohesive, dominant special interest by the time of the Constitution’s adoption. Opponents of the Constitution did of course sometimes use proslavery arguments, but this was hardly their primary concern, whether with respect to the Constitution generally or its militia clause specifically. And the change of the proposed Second Amendment’s wording from “free country” to “free State” is making a mountain of molehill. Hartmann doesn’t even get the story right, because as Bogus correctly reports, the change was made by the House committee, not by Madison.

(The House committee reviewing Madison’s proposed Bill of Rights had 11 members, one from each state. Madison was the representative from Virginia. There is no record of the committee’s deliberations. But since Madison had opposed creating the committee in the first place, preferring that the House consider the amendments directly, and since many of the members of the committee were initially opposed to a Bill of Rights, it is highly doubtful that Madison was responsible for the changed wording in ANY of the amendments as they were reported by the committee.)

The “more fundamental issue” here is the debate over the right to bear arms as an individual right, or a collective right. Hummel continues:

Bogus (Hartmann’s main source) is one of the prominent lawyers defending the collective-right theory of the Second Amendment. Constitutional lawyers generally write poor history, filled with special pleading (Leonard Levy being a notable exception), and especially when they write about the Second Amendment. Their biggest problem is that they know almost no genuine military history, and so their discussions of the militia are riddled with anachronistic errors.

At the time of the Constitution’s adoption every state had a compulsory militia for most able-bodied males, which performed military and police functions not just in the South but in the North as well. The voluntarization of the militia did not occur in the northern states until the Jacksonian era, with Delaware, actually a slave state, being the first in 1831. Moreover, while the Constitution authorized nationalization of the militia, this was a contentious political issue, and all serious attempts to implement it with legislation were defeated in Congress until the Spanish-American War inspired passage of the Dick Act of 1902. Thus, Bogus’s claim that the Constitution embodied an immutable definition of the militia is utter rubbish.

Hummel sent me an article by Roger I. Roots, “The Approaching Death of the Collective Right Theory of the Second Amendment,” in the Fall 2000 edition of the Duquesne Law Review (available here as a pdf). Roots specifically criticizes Bogus’s thesis that the Second Amendment was a stealth slavery provision (footnotes removed in quotation):

[A]ccording to Bogus, the. . . Second Amendment was an avenue for Southerners and Anti-Federalists, who had lost out in the overall design of the Constitution, to assert a buffer provision against the military power of the federal government. Unfortunately for this line of reasoning, a secret or “hidden” history is neither binding nor helpful in interpreting a constitutional provision. Nor is it nearly as clear, as Bogus suggests, that slavery supporters cowed at stating their support openly during the ratification debates. The Constitution does, after all, contain slavery provisions that were expressed (and thus “unhidden”) in the text — albeit in stifled wording. While these slavery provisions may contain “inscrutable language that the people could not readily understand,” they nonetheless were understood by people of the Founders’ era as slavery provisions. Bogus’s own writings yield scant primary evidence (which would be needed to take his argument on its face) of either any similar understanding regarding the Second Amendment or any secret correspondence among slavery supporters evidencing the notion that the Second Amendment was intended to enable slave states to obstruct the federal government should abolitionists ever gain control of it.

Roots also argues that the whole collective rights theory of the Second Amendment requires that we ignore a huge wealth of documentary evidence about what contemporaries thought the Amendment protected.

In order to operate to the exclusion of an individual right, the collective right doctrine seemingly requires the utter absence of documentary evidence that the Founders considered the Amendment as a protection of the right of individuals. Yet rarely is a collective right scholar brazen enough to assert that such evidence is nonexistent. The collective right argument instead depends upon the suppression, or at least the avoidance, of ratification era statements that described the right to keep and bear arms as a fundamental individual right. Increasingly dogged research has shown that the historical record is relatively rich with statements by both the primary Founders (those who served as delegates to the ratifying conventions) and the secondary Founders (those who contributed ideas, editorials, or writings about the Constitution in public forums) expressing the viewpoint that keeping arms was a fundamental individual right and that the Second Amendment was designed to protect that right.

Much of this evidence can be found in Stephen Halbrook’s The Founders’ Second Amendment: Origins of the Right to Bear Arms, the first book-length, extended rebuttal of the collective rights theory.

Anthony Gregory

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