The second amendment and slavery

It’s said the second amendment was incorporated into the US Constitution to protect slavery. We’re going to discuss this claim and see how true it is. We’re flying in.

Today, I want to speak to you about the second amendment and slavery.

We already know how controversial this amendment is. However, on this occasion, I want to focus on what some of its detractors say about it. They claim that framers drafted it to preserve slavery in the US. So, the point here is to analyze if that claim is true.

To do so, I’m going to set forth the best arguments of those who maintain that critical point of view. Afterward, I’ll move on to analyze the constitutional, political, and social context in which framers drafted the second amendment. And finally, I’ll address the political stance behind second amendment critics.

“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.”

Critics view

Critics of the second amendment argue that its incorporation to the Bill of Rights intended to preserve slave patrol militias in southern States. They support this claim by focusing on the first part of this amendment. They connect it with the existence of militias in the South by identifying them with “slave patrols.” Before the US independence, colonial legislatures regulated these militias by passing laws that required all plantation owners or their white male employees to be members of the militia. It involved monthly inspections of the quarters of all slaves in their jurisdiction.

This claim looks for support in Georgia’s statutes, which show a tight regulation of the militia, and more specifically, of these slave patrols. Then, critics conclude that the primary purpose of militias was to preserve slavery. To strengthen this perspective, they stress that most southern men between 18 and 45 had to serve in the militia at one time or another in their lives. Besides this, they underscore that any slavery system needs a police State to survive, as the scholar Carl Bogus points out, and that was the explicit job of the militias.

Furthermore, critics underline the concerns among southern leaders over the enlarged powers of the federal government with its capacity for raising an army. These leaders considered it a threat because it could lead to the emancipation of slaves if they ended up serving in the federal army. To support this idea, they base their argumentation on some statements of Patrick Henry and George Mason about the power of the US Congress to discipline and disarm State militias.

History of the second amendment

I have to admit this point of view was shocking for me, because most of its argumentation is misleading and feeble if we contrast it with historical facts. Let’s move on.

The first objection to this perspective is the fact that it identifies slave patrols with State militias. And the truth is that they were different and had nothing to do one each other. I don’t mean that slave patrols weren’t important to the South and slavery, yet, slave patrols and militias were different bodies. After making clear this point, all the critics’ argumentation falls flat. Let’s see why.

First, the function of State militias wasn’t law enforcement. So, the second amendment was directed exclusively at the federal government by forbidding the disarmament of the State militias. At the same time, it allowed the States to arm these forces if the federal government didn’t do so. Even if the amendment did not exist, and the national government had abolished the State militias, the States would have been free to create their slave patrols, like any other law enforcement agency or police department.

Therefore, the second amendment never intended to affect local law enforcement at all because it only forbids the national government to disarm the State militias. So, this amendment had nothing to do with State police powers, which were the basis of slave patrols. In this way, the amendment prevented the federal government from infringing State autonomy. There was no federal interference with State criminal justice or policing. And no one in 1789, when the US constitution was ratified, would have imagined the national government meddling in State policing powers.

Then, what was the function of the militia? They defended States against foreign powers or against some president who became a tyrant. In any case, militia and slave patrols weren’t the same thing. However, it doesn’t deny militias sometimes acted as slave patrols or included slave patrol duty. But that was the exception.

Another misleading idea of the second amendment detractors is the possibility of the federal militia to free the slaves by transforming the State militias. In their view, that explains the concerns of Southern leaders over the expanded military power of the federal government provided by the constitution. The reality is that there is no evidence to support this claim, and it’s hard to imagine how that would work under Article 1.

And last but not least, we can’t forget the constitution recognized slavery. So, it’s hard to imagine how it could abolish something it protected at that time. If it weren’t the case, it would have been unnecessary the thirteenth amendment. That makes weird the critics’ argumentation I discussed before, especially regarding the protection of slave patrols by the second amendment.

The fact is the second amendment intended to constrain the federal government power, and never to affect local law enforcement. It seems that critics don’t take into account the origins of the Bill of Rights, and the circumstances it was drafted by James Madison. Indeed, as Thomas Hartmann hints in his discussion on this topic, they depict the incorporation of the second amendment into the US constitution as part of a conspiracy of Southern leaders to preserve slavery.

It’s a striking conspiracy theory if we overlook the political stance of many of these leaders, such as Patrick Henry, or George Mason. They opposed the ratification of the US constitution and the Bill of Rights. Actually, they were political rivals of James Madison, the author of both the US constitution and the Bill of Rights.

Political context in the US in the late 1700s

I don’t want to devote much time to discuss the political and social context in the US during the ratification of the constitution and the Bill of Rights. You can find a more detailed account in another article.

In any case, I have something to say about this.

The ratification of the constitution involved bitter debates between different political factions. On the one hand, there was the Federalist faction that supported the ratification to establish a strong national government. And on the other hand, there were Anti-Federalists, who were opponents of the constitution because it entailed the expansion of government powers and a threat for individual liberties.

Because the ratification of the constitution was at risk, Federalists tried to reach a compromise to get the necessary support. They conceded amending the constitution with a Bill of Rights. And this document was designed as a way to constrain the federal government and prevent it from passing bills against natural rights. In that political context, took place the draft of the second amendment.

Some opponents of the constitution held a radical stance, such as Patrick Henry, and they looked for undoing both the constitution and the federal government. They may look radical from our current point of view, but at their time, their political position was popular. If I had to summarize the way they understood the nature of the Union, I’d say they considered it fundamentally a Confederation. And that’s why they rejected the idea of establishing a strong national government vested with enlarged powers. However, they failed, and most Anti-Federalists conformed with the Bill of Rights.

But, what about the second amendment in all this political turmoil of the late 1700s? I could tell many things about this, but I did it before in another video. There, I addressed the matter with more detail.

Nevertheless, I think it deserves a few words to make clear some points.

The second amendment

The US constitution shifted the control of the States’ militias to the federal Congress, which had from then on the power to raise a standing army. Besides this, the Congress took on the power to use the State militias to execute the laws of the Union, suppress insurrections, and repel invasion. That was a great concern for many political leaders, both in the North and the South. So, the second amendment is the response to that concern insofar as it grants the States their militias, and constrains the US government authority.

In addition to this, the second amendment granted the right to keep and bear arms. Some scholars considered this a collective right, due to the initial mention of militias. Therefore, they think this right works only within the context of a well-organized militia. On the contrary, some judges believe this right is individual. The truth is the amendment, as it’s written, is not clear on this.

As I see it, this debate doesn’t make much sense. Why? Because you can’t have a militia if people are unable to keep and bear arms. And we can’t forget militias were chiefly voluntary armed forces, so, people joined them because they considered it a civic duty.

But what does this have to do with slavery? Nothing, because it shows the second amendment intends to confine the power of the federal government, and not to grant slave patrols in the South. Indeed, it confirms the natural right to have the means to resist tyranny and self-defense.

Social context in the US at the end of the eighteenth century

There’s something else I want to stress here, and it’s related to the social conditions in the US at the end of the eighteenth century. Something we shouldn’t dismiss.

The social context is essential. In the late 1700s, there was a clear difference between the North and the South. The North stood out with its cities, seaports, and commercial relations. At the same time, the South was rural, poorer, and with an economy based on plantations.

In social terms, 40% of the white population was farmers. In addition to this, there was a considerable proportion of craftspeople, urban workers, shopkeepers, petite bourgeois people, and dealers. So, slave owners were a wealthy minority in the South. It’s important to stress it because critics of the second amendment suggest all white people were slave owners. And that wasn’t the case.

For this reason, most white people didn’t get any benefit from slavery. And they didn’t have a real interest in preserving such an institution. On the contrary, they were more interested in maintaining their individual and collective autonomy.

The political stance of second amendment detractors

I don’t want to finish this discussion without addressing the political stance hidden behind critics to the second amendment. Indeed, I believe this may be very interesting.

In general, critics try to identify the second amendment with slavery. If I had to summarize their stance, I’d say that all in all, the second amendment wasn’t a bulwark against tyranny but a way of enforcing it.

As I discussed before, they support this point of view by arguing the popular belief on this amendment is completely wrong. In this respect, they claim that people think the founders wrote the second amendment to give Americans the right to take up arms to fight government tyranny. That’s not exactly true because this amendment doesn’t grant the right to rebellion, but the means to self-defense, which historically has been considered a natural right.

Naturally, we can’t deny the relationship between self-defense and the political idea of consent as foundations of the representative government. I spoke about it on another occasion, and I don’t want to go into this again here. So, check the video to get more detailed information.

Natural rights are something inalienable, and nobody can surrender them. They include the right to resist those who decide to rule against such natural rights. And they are present in the western political tradition since the Middle Ages. Hence, the right to rebellion is something implied in the right to bear arms, but not expressed in the amendment. In brief, the second amendment is a constraint to the federal government to prevent it from disarming the people and ruling without consent.

However, opponents of the second amendment have already shown they would like to disarm the American people under the justification of preventing wrong people from getting guns. It seems that Americans are those wrong people.

Question of the day

Question of the day! What do you think about gun control? Post your opinion in the comments section below, and I’ll check it out.

Bibliography used:

Mencimer, Stephanie, “Whitewashing the Second Amendment” in Mother Jones 2008, http://tiny.cc/hsr4jz

Hartmann, Thom, “The Second Amendment Was Ratified to Preserve Slavery” in Truth Out 2013, http://tiny.cc/6sr4jz

Finkelman, Paul, “2nd Amendment Passed to Protect Slavery? No!” in The Root 2013, http://tiny.cc/7vr4jz

Bogus, Carl T., “The Hidden History of the Second Amendment” in U.C. Davis Law Review 31(2), 1998, pp. 309-408

Haden, Sally E., Slave Patrols: Law and Violence in Virginia and the Carolinas

Morgan, Edmund S., The Birth of the Republic

Mann, Michael, The Sources of Social Power, Vol. 2

Malcolm, Joyce Lee, To Keep and Bear Arms: The Origins of an Anglo-American Right

Halbrook, Stephen P., A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees

Halbrook, Stephen P., That Every Man Be Armed: The Evolution of a Constitutional Right (Independent Studies in Political Economy)

Foner, Eric and John Arthur Garraty, The Reader’s Companion to American History

Blackstone, William, Commentaries on the Laws of England

DeConde, Alexander, Gun Violence in America: The struggle for control

Henry, Patrick, Speech on the Federal Constitution

Elliot, Jonathan, The Debates in the Several State Conventions on the Adoption of the Federal Constitution

Frohnen, Bruce (ed.), The American Republic: Primary Sources

Levy, Leonard W.. Origins of the Bill of Rights

Madison, James, Selected Writings of James Madison

Merkel, William G. and H. Richard Uviller, The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent

Spitzer, Robert J., The Right to Bear Arms: Rights and Liberties under the Law

Nelson, Dana D., Commons Democracy: Reading the Politics of Participation in the Early United States

Disclosure: Some of these links are affiliate links where I’ll earn a small commission if you make a purchase at no additional cost to you. As an Amazon Associate I earn from qualifying purchases.