The Hidden History of Guns and the 2nd Amendment
Chapters 9 & 10
Gun Culture Enshrined: The Second Amendment
To put on the garment of legitimacy is the first aim of every coup.
—Barbara W. Tuchman, A Distant Mirror: The Calamitous 14th Century
There’s an old saying, paraphrasing Hitler, that “the winners write history.” American culture grew out of genocide, slavery, and white supremacy, and guns have been central to this history, although the white “winners” have largely excised this from modern historical narratives. But the founders knew what was up.
When the Bill of Rights was ratified, the Second Amendment institutionalized guns, as well as the militias, into the fabric of this newly formed nation. But this is, in part, an accident of Constitutional history.
Like so many other things that are core to America, the Second Amendment originated in the mind of Thomas Jefferson. Ironically, the slave owner who spent much of his life trying to end slavery gave birth—albeit indirectly—to the amendment necessary to bring the southern states into the union, and thus to keep their slaveholding institutions intact.
It started with Jefferson’s concern that the new nation he’d helped birth might end up the victim of a military coup because a standing army had risen up during times of peace (as had happened so often in European history). Jefferson disliked and feared standing armies so much that he demanded that James Madison add a ban on them to the Bill of Rights. Otherwise, Jefferson strongly implied (to Madison and many others) that he’d sabotage the Constitution in the Virginia ratifying convention.
Without Virginia’s vote for ratification, the Constitution would die.
As a Virginia slave owner, Jefferson also knew the importance of the slave-patrol militias that kept down slave uprisings in that state. The governments of Georgia and the Carolinas had already enshrined slave patrols into law. The slave-patrol militias were also well known to the Virginian James Madison, whose slave-powered plantation Montpelier was just a half-day’s ride from Jefferson’s Monticello.
Neither Jefferson nor Madison thought the Constitution represented a threat to their state’s slave patrols. Nonetheless, this issue ultimately forced Madison to make two modifications to the Second Amendment. And those modifications, ironically, ended up leaving standing armies intact—along with the slave-patrol militias in the South.
A Constitutional Rorschach Ploy: Limits on Slavery?
They sold my mother, sister, and brother to old man Askew, a slave speculator, and they were shipped to the Mississippi bottoms in a boxcar. I never heard from my mother any more. I never seed my brother again, but my sister come back to Charlotte. She come to see me. She married and lived there till she died.
—Patsy Mitchner, age 84, Raleigh, North Carolina1
It was the week before Christmas, 1787. Thomas Jefferson sat at his desk on the ground floor of his rented home, the 22-room townhouse known as the Hôtel de Langeac on the Champs-Elysées, just outside the gates of the city of Paris. Living in the house with him were his daughters, Patsy, 15, and Polly, 9; his personal secretary, William Short; and two of his slaves, 22-year-old James Hemings and 14-year-old Sally Hemings.
The issue of slavery was much discussed in Europe and America at the time. France had declared it illegal, so James and Sally Hemings were both considered free persons when they arrived, and Jefferson paid them each as employees.
Jefferson had just received correspondence from his close friend, fellow plantation owner, and protégé, James Madison. Before him on his desk lay the first draft of a new Constitution for 13 recently liberated states on the North American continent.
For four years since the American Revolution ended, the 13 states had been operating as a loose confederation, functioning pretty much as independent nation-states stitched together with what was largely a trade agreement called the “Articles of Confederation.”
Madison’s newly proposed Constitution would bring the states into a single union, knit together by a federal government, something functionally lacking under the Articles. It would create the United States of America.
Madison had spent the previous five years studying constitutions ancient and modern, from the Greek and Roman to the Iroquois, and kept the notes throughout the Constitutional Convention that summer in Philadelphia. His knowledge was so deep, his influence so powerful, that to this day he’s known as “the father of the Constitution.” But he wanted his mentor’s thoughts before going further.
Jefferson wrote to Madison from Paris on December 20, 1787, that he would oblige, by “adding a few words on the Constitution proposed by our convention.”
“I like much the general idea of framing a government,” Jefferson wrote, “which should go on of itself, peaceably, without needing continual recurrence to the State legislatures. I like the organization of the government into legislative, judiciary and executive. I like the power given the legislature to levy taxes, and for that reason solely, I approve of the greater House being chosen by the people directly.”
Jefferson was particularly pleased with the House/Senate compromise (small states still got two senators) and the three-fifths and 1808 compromises, which brought together the 13 slave and free states.
Although slavery was arguably protected in the new Constitution, it was only within limits.
For example, the southern states had argued at the Constitutional Convention that because the number of representatives a state got in the House of Representatives was calculated by how many people lived in that state, all of their enslaved people should be counted in the census every 10 years so that they could have more members representing them (and, thus, more votes and more power) in the House of Representatives. The northern states’ representatives pointed out that slaves couldn’t vote in the South (freed Blacks did vote in several northern states during this era) and therefore should not be counted at all.
The southerners rebutted that there were large numbers of white indentured (“bound to Service”) servants in the North (most had indentures to pay off the cost of transporting them from Europe, although some were indentured because of debt or crimes) who also couldn’t vote, as well as large numbers of Indians, particularly among the populous six-nation Iroquois Confederacy, who were forbidden to vote. They suggested that if the slaves in the South weren’t to be counted toward congressional representation, then those indentured white people and the Indians in the North shouldn’t be counted, either.
The compromise worked out was that three-fifths of the slaves in the South would be counted, along with all of the white indentured servants in the North but none of the Indians in any state (except those who’d accepted the white man’s life and were working and paying taxes).
They codified it in Article 1, Section 2 of the Constitution, which says:
“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”
The second limit was that the slave trade into America would end in 1808, although this was a bit of a Rorschach ploy: everybody saw in it what they wanted.
The northern representatives (and some from the South, like Jefferson, although he was not included in the debates) hoped this meant that slavery would fade out of American life quickly after 1808. The majority in the South accepted that date because they figured by then they’d be solidly in the “slave-breeding” business, and cutting off the importation of enslaved Africans would raise their value. (At the time of the Constitution’s writing, a single slave in good condition had the value of about 100 acres of land.)
That 1808 compromise was put into the Constitution in Article 1, Section 9:
“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight . . .”
There were those in the North who objected to the Constitution because it wasn’t more explicit about ending slavery. And, similarly, some in the South were openly worried that the Article 1, Section 8, militia powers given to Congress by the Constitution could be used by the North to take away and/or free their slaves by calling them up for military service.
Jefferson wasn’t so concerned about the Article 1, Section 8, argument and saw the two compromises as a way to bring the slave and free states together to create the United States.
But it was Jefferson’s objection to standing armies during times of peace that led directly to Madison drafting the Second Amendment—and to that amendment being ultimately modified in such a way as to guarantee that the southern states could keep their slave patrols.
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