Portside Date: January 25, 2013

Author: Paul Finkelman, Ph.D.

Date of source: January 21, 2013

The Root

(The Root) -- Recently Thom Hartmann published an essay on Truthout titled "The Second Amendment Was Ratified to Preserve Slavery." Hartmann, who is described on the Internet as a radio host, author, former psychotherapist and entrepreneur and a progressive political commentator, said the amendment to the U.S. Constitution was intended, in part, to protect slave-patrol militias. 

If Hartmann's political goal is to argue for reasonable firearms regulations, then he and I are in the same camp. I have long argued that the Second Amendment does not protect an individual's right to own firearms, and that the purpose of the amendment was purely to guarantee that the states could maintain their own militias. I have also written a great deal on how the Constitution protected slavery (see my book Slavery and the Founders: Race and Liberty in the Age of Jefferson), and I am not shy about pointing out how the founders protected slavery. Indeed, my most recent public comment on slavery and the founding was an op-ed in the New York Times on Jefferson and slavery titled "The Monster of Monticello."

Still, however committed one may be to a political outcome, it serves no purpose to make historical arguments that are demonstrably wrong, misleading and inconsistent with what happened. Hartmann does not serve his cause well by purporting to write history when his version of history is mostly wrong, and very misleading.

Hartmann begins by arguing that "the real reason the Second Amendment was ratified, and why it says 'State' instead of 'Country' " was that the framers wanted "to preserve the slave patrol militias in the southern states, which was necessary to get Virginia's vote." 

Hartmann implies that the Second Amendment was adopted (or at least written) to get Virginia's "vote" for ratification of the Constitution, which took place in July 1788. But this is not even remotely true. In 1788 the Second Amendment was not yet written and was not part of the debate over ratification of the Constitution.

As everyone familiar with the ratification of the Constitution knows, Virginia's ratification convention narrowly voted to support the Constitution because of the hard work of James Madison, John Marshall and Gov. Edmund Randolph. George Washington, who had attended the Constitutional Convention but was not at the ratifying convention, lent his great prestige in support of the Constitution. His nephew Bushrod Washington was a delegate and voted to ratify. 

Virginia's ratification took place after New Hampshire had ratified -- giving the Constitution the necessary nine states to go into effect. Virginia was the 10th state to ratify. But this had nothing to do with the Second Amendment, which had neither been proposed nor written at this time.

It is possible that Hartmann believes that Virginia only ratified the Constitution because of a promise of future amendments. But this is not the case. The opponents of the Constitution -- led by Patrick Henry -- wanted Virginia to give a conditional ratification that would require future amendments. But Henry lost on this issue. The Virginia convention ratified the Constitution over the strenuous objections -- and absence of votes -- of Henry, George Mason and their ilk. Only after the Virginia convention had ratified the Constitution did the victorious federalists -- led by Madison -- allow the anti-federalists to offer 40 proposed amendments, one of which allowed the states to arm their own militias.

But these proposed amendments were not a quid pro quo for ratification, since none of those advocating amendments, like Henry, voted for ratification. Thus, there is no evidence -- no historical record -- for Hartmann's key proposition that the Second Amendment (which was not written until 1789) was somehow a prerequisite for the ratification of the Constitution in 1788. 

Perhaps Hartmann thinks that the Second Amendment was necessary for Virginia to ratify the Bill of Rights. But this is also completely wrong. In 1789 Rep. Madison proposed a series of amendments that included what is now the Second Amendment. Congress endorsed 12 amendments, and 10 were ratified as the Bill of Rights. So, maybe Hartmann thinks that Virginia would not have ratified the other nine amendments if it had not been for the Second Amendment. But, each amendment was ratified separately. Thus, if this is Hartmann's theory, Virginia should have only ratified the Second Amendment. But that did not happen.

Hartmann's "history" gets even more confused when he argues that the purpose of the Second Amendment was to protect slave patrols (which he confuses with the militia) and that James Madison, Patrick Henry and George Mason all teamed up to do this. He argues that Madison changed the text of the Second Amendment to please Mason and Henry. This is almost amusing. Both Henry and Mason were Madison's political enemies, and neither was in Congress when Madison drafted the Bill of Rights. In fact the wording changes took place in the House and Senate. Nor did Mason and Henry have much to do with writing the Second Amendment since they were not in Congress. When the Second Amendment was proposed, Henry opposed it (along with the rest of the Bill of Rights). 

The idea of Madison, Henry and Mason teaming up in 1787 or in 1789 (when Madison wrote the Second Amendment) would make an entertaining Saturday Night Live skit. Madison and Henry could not stand each other. They were political opponents throughout this period. After 1787 Mason joined Henry in opposing the Constitution (which Madison worked so hard to create), and both Henry and Mason opposed the Bill of Rights. Indeed Virginia was the last state to ratify the Bill of Rights (in 1791) because of Henry's opposition to the Bill of Rights. Henry wanted to scuttle the whole Constitution and not make it better. So he opposed all the amendments. 

Thus, Hartmann's "conspiracy" falls flat because a conspiracy would require that the people allegedly involved talked to each other.

This is not to say that slave patrols were not important to the South and slavery. They surely were. But the Second Amendment was directed solely at the federal government, which was prohibited from disarming state militias, and thus allowed the states to arm their militias if the federal government did not 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 own slave patrols, just as they can create police departments and other law-enforcement agencies.

Thus, the Second Amendment does not and was never intended to affect local law enforcement at all. It only prohibits the national government from disarming the state militias. The amendment had nothing to do with state police powers, which were the basis of slave patrols, and there was no federal interference with state criminal justice or policing until the 20th century. No one in 1789 would have imagined the national government interfering with state policing powers. However, the framers did imagine that the national government might help recover fugitive slaves, and Congress passed two laws, in 1793 and 1850, to do just that. But these laws supplemented powers of the states to hunt fugitive slaves. 

The slave patrols were emphatically not the militia. The militias had just fought in the Revolution. The states wanted to preserve their militias in case they had to defend themselves against a foreign power or against some president who became a tyrant. Thus the Second Amendment promised that the states could keep their well-regulated militias. (See a discussion of this in my article "A Well Regulated Militia.") Sometimes the militia acted as a slave patrol; sometimes militia service might include slave-patrol duty, but they were emphatically not the same thing. 

Hartmann claims that "By the time the Constitution was ratified, hundreds of substantial slave uprisings had occurred across the South." Does he have any evidence for this claim? Such evidence would revolutionize our understanding of Colonial and early national history. But there is no evidence for such a claim, because these "substantial slave uprisings" never took place. There were some small instances of slave violence in the Colonial period, although escape was the most common form of slave resistance. There was only one true "slave uprising" in the South, the Stono Rebellion in South Carolina, which took place in September of 1739, a half century before the Constitution was ratified. There were not "hundreds" of such rebellions, only very few, and only Stono was "substantial." On this issue Hartmann is simply wrong.

Hartmann's statement that Patrick Henry "opposed slavery on principle" is almost amusing! In fact, in opposing ratification, Henry argued that the Constitution threatened slavery. Henry owned slaves throughout his adult life, and did not free them either during his life (like some Southern patriots) or even at his death (like Washington). He made numerous speeches defending slavery at the Virginia ratifying convention and argued against ratification on the grounds that the national government would someday free the slaves of Virginia.

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."