2nd Amendment Passed to Protect Slavery? No!

A legal scholar lambastes a Truthout article claiming that it was for preserving slave-patrol militias.

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Hartmann argues that the "main concern" of those who wrote the Second Amendment "was that Article 1, Section 8 of the newly-proposed Constitution, which gave the federal government the power to raise and supervise a militia, could also allow that federal militia to subsume their state militias and change them from slavery-enforcing institutions into something that could even, one day, free the slaves." There is not a shred of evidence that anyone thought this. Moreover, it is hard to imagine under Article I how that would work.

If anything, Northern anti-federalists opposed the Constitution because it would force Northerners to march south and suppress slave rebellions. The use of state militias (although not Northern ones) to suppress Nat Turner's rebellion in 1831, and the use of the U.S. military to suppress John Brown's raid in 1859, illustrates this issue.

Hartmann asserts that in the "lead-up" to the Revolution Lord Dunmore issued a proclamation freeing slaves in Virginia. In fact, Dunmore issued his proclamation after the Revolution began and fighting had broken out, not in the "run-up" to it. In writing about history, it is important to get the chronology straight. Since British policy supported slavery and British policy was designed (however poorly) to keep the colonists in the Empire, it is hard to imagine why Hartmann would believe that before the Revolution the Royal Governor of Virginia would start freeing slaves. 

The Constitution (as opposed to the Bill of Rights) protected slavery in many ways, through the Three-Fifths Clause, the Slave Trade Clause, the Domestic Insurrection Clause, the Fugitive Slave Clause and the amendment provisions. The Fifth Amendment protected slave property, as Chief Justice Taney says in Dred Scott (1857), but most of the rest of the Bill of Rights is not about slavery in any important ways. 

Although Hartmann does not discuss this, race plays a big factor in why the Second Amendment was not designed to create an individual right to own guns. No one in 1789 would have imagined that the amendment prohibited the national government from disarming free blacks in the territories or the District of Columbia. The amendment merely prevented the national government from destroying the state militias. But, since the amendment did not apply to the states, they were all free to regulate firearms ownership, as they did. The U.S. Supreme Court has misunderstood this, but that only shows that Justices Scalia and Thomas are not really interested in original intent.

Finally, it is worth noting that the Bill of Rights was hardly the creation of Virginia or the slave-owning South. People in a number of states feared that the national government would abolish the state militias. Madison thought these fears were nonsense, since the national defense at that time rested on a "well-regulated militia." Thus he answered their concerns with the Second Amendment. He drafted an amendment to protect the right of the states to maintain their militias. Some other anti-federalists wanted a federal guarantee of a right to own weapons for hunting and self-defense and even a federal right to go fishing. Madison wisely ignored these demands and emphatically did not offer an individual right to own weapons.

The Second Amendment and the military clauses in Article I allowed the state to train their militias. This turned out to be important, because in the 1850s Massachusetts, Ohio and a few other Northern states increased appropriations for their militias and beefed up their training. In 1861 the Massachusetts militia would be the first to reach Washington, D.C., to protect the national capitol and help preserve the Union. Later in the Civil War, the Bay State would organize the 54th Massachusetts Regiment -- the "Glory Brigade" -- made up of free blacks and fugitive slaves from all over the North. 

I am sure I agree with Hartmann about many aspects of public policy and the need for significant and reasonable firearms regulation. I suspect he might agree with my writings on the pro-slavery aspects of the Constitution. But, sadly, good public policy will not be helped by constructing a factually incorrect and misleading history of the Second Amendment that does not exist, writing about slave rebellions that never happened and totally misunderstanding the nature of the ratification of the Constitution and the Bill of Rights.

Paul Finkelman, Ph.D., is the President William McKinley Distinguished Professor of Law and Public Policy at Albany Law School. He is the author of more than 40 books, including Slavery and the Founders: Race and Liberty in the Age of Jefferson and recently published an op-ed in the New York Times on Thomas Jefferson and slavery entitled "The Monster of Monticello."

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