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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