Monday, July 03, 2017

"A well regulated militia" defined

Nat Turner woodcut.jpg
Nat Turner's slave rebellion

Contrary to the dishonest conservative interpretation, the Second Amendment was all about the states' right---especially the Southern states---to maintain militias to guard against slave rebellions, not the invented right of every crackpot in the country to own a gun. Northern states worried more about Indian uprisings. 

The text: "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." The National Rifle Association edits the amendment to read "The right of the people to bear arms shall not be infringed," leaving out the opening clause with that pesky reference to "a well regulated militia."

Garry Wills, in a special supplement to yesterday's hard copy of the NY Times, corrects the historical record:

Finding original intent is more complicated than just looking up words in dictionaries of the 18th century. It means re-entry into a lost world. Take the matter of the right to keep and bear arms. That is military terminology. One does not bear arms against a rabbit. "Arms" is itself a military designation. We do not normally say, "I keep arms" when we mean "I own guns."

Of course citizens had a right to own guns in the 18th century, to buy them and use them. That went without saying. There was no reason to declare it in a Constitution, "I have and will protect a right that everyone just took for granted." It was like saying, "Guarantee my right to breathe."

What was a matter of real urgency was the right of a state to keep military equipment (arms) in an armory and bear the arms in state militias. That was a right that was clamorously called for by critics of the new Constitution, especially by Patrick Henry. Madison was responding to that demand when he included the militia provision in his initial 10 amendments (the Bill of Rights).

The states had several reasons for apprehension on this matter. There was a general opposition to standing national armies...More to the point, the states wanted their own faculty for immediate response to military threats (e.g. from Indian tribes to the west or British provocations from Canada or French threats from Florida or Louisiana). Federal protection might come too late to handle these brush fires---or might not be wanted.

But, as law professor Carl Bogus has argued, the most passionate demand for a militia guarantee came from the Southern states, where slave insurrections were a constant preoccupation. Guns had to be guarded in armories, where slaves could not get at them. And militias conducted their exercises through "slave patrols," especially on Sundays, when slaves were not typically occupied. Outside troops were not wanted, because they might take a different view of the South's "peculiar institution."...

This "original intent" consideration of the Second Amendment shows just how far the position of slavery pervaded the Constitution. It is not usually included in the list of ways the document privileges slaveholding. Other provisions are regularly criticized: the Three-Fifths Clause that let slave states be overrepresented in Congress (Article I, Section 2)...

But Patrick Henry's concerns make it clear that the Second Amendment was also intended to protect slaveholders, who used militias to keep a firm grip on their slaves. Madison was responding to his fellow Virginian in ways that he clearly understood when he formulated the Second Amendment. He was, after all, a slaveholder himself (as were 11 other presidents).

Slavery, which has tainted everything in American history, left many marks on the Constitution itself. It still distorts our understanding of the Second Amendment's intent. It was not meant to let individuals prevent federal "tyranny"...It was meant to guarantee the legality of "a well regulated[that is, state-controlled] Militia" to handle the states' internal problems, especially the problems of a large slave population.

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At 4:29 PM, Anonymous Anonymous said...

I know that the new arguement to ban all fire arms is what the "intent" was. However, it would be very difficult to prove "intent" based on slavery. Looking at quotes and speeches from our founding fathers and presidents beginning with George Washington as well James Madison the author of the bill of rights/second amendment speak of a different "intent".

So the arguement of "who would know the intent better than them" could be made. All they can do is what they have been doing is make it difficult to own a gun with new laws passed. And out right ban would be pretty difficult and may just end up starting an armed revolution. Proving "intent" based on slavery would be a long shot.

At 11:43 AM, Blogger Rob Anderson said...

No one is proposing to "ban all fire arms." The point Wills is making: 18th century America was a completely different place than 21st century America. The threats faced by the 13 original states were different than what we face today, since guns are now essentially a public health problem.

The threat of slave rebellions and Indian attacks were real, which is what the Second Amendment's reference to "a well regulated militia" was about, not the individual's right to own a gun.


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