Thursday, January 17, 2013

A Constitutional Right to Own Slaves!

I stumbled across this article in the Univ of Calif at Davis Law Review.  I will quote two paragraphs, suggest you read the whole paper, and let it speak for itself.  Quite an interesting look onto the history of and basis for the "sacred" 2nd Amendment.

This Article challenges the insurrectionist model. The Second Amendment was not enacted to provide a check on government tyranny; rather, it was written to assure the Southern states that Congress would not undermine the slave system by using its newly acquired constitutional authority over the militia to disarm the state militia and thereby destroy the South's principal instrument of slave control. In effect, the Second Amendment supplemented the slavery compromise made at the Constitutional Convention in Philadelphia and obliquely codified in other constitutional provisions.[52]

Part I of this Article relates the hidden history of the Second Amendment. In many ways, the story begins in June 1788 at a convention in Richmond at which Virginia was to decide whether to ratify the Constitution of the United States. However, before relating the events at Richmond, Part I provides some background involving slavery, slave control, the militia, and the dynamics of the struggle between the Federalists and anti-Federalists as they headed toward a showdown in Richmond. Part I then describes political events occurring after Richmond which persuaded Madison to write a bill of rights, including the provision we now know as the Second Amendment.

Let the debate begin!


  1. Al-

    Interesting, but searching Bogus's text I found no mention of Andrew Fletcher, who wrote about the importance of militias to oppose standing armies during the 1730s. I think the fear of mercenary armies was at least as great, (probably far greater) as that of the states losing control of their militias which would have required sizable expenditures from the federal government to maintain the federal army. What exactly were the chances of that?

    This "hidden history" may have been one of the motives for the 2nd Amendment, but it surely wasn't the only, let alone the main one . . .

    Here's a link to Fletcher's Discourse of Government With Relation to Militias . . .

    I see a very strong link between this and the later 2nd Amendment . . .

  2. seydlitz-

    The point is that the "Founders" expressed a wide range of intents pertaining to this amendment, and the end result was not some divine revelation of perfection, but a compromise document appeasing some significant regional differences. Since one significant compromise was to specifically support the interests of slave owners, it definitely offers a very clear "intent" for the Amendment than what is most popularized. If you are going to argue "intent", then is it not worthwhile to discuss every expressed "intent"?

    Patrick Henry was even more direct. He drew the audience's attention to the section of the Constitution that provides that no state may, without the consent of Congress, "engage in War, unless actually invaded,"[202] and asked: "If you give this clause a fair construction, what is the true meaning of it? What does this relate to?"[203] Henry answered this question as follows:

    Not domestic insurrections, but war. If the country be invaded, a state may go to war, but cannot suppress insurrections. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress . . . . Congress, and Congress only, can call forth the militia.[204] [Page 350]

    In one of his last speeches in the final days of the Convention, Patrick Henry raised the question of slavery in so direct a fashion that he appears to have violated the mores of that time and place. "In this state there are two hundred and thirty-six thousand blacks, and there are many in several other states. But there are few or none in the Northern States,"[211] he began. He suggested that under its power to provide for the general defense, Congress might enlist blacks in the army and then emancipate them. "Slavery is detested," he explained.[212] In a moment he continued:

    [T]hey will search that paper, and see if they have power of manumission. And have they not, sir? Have they not power to provide for the general defence and welfare? May they not think that these call for the abolition of slavery? May they not pronounce all slaves free, and will they not be warranted by that power? This is no ambiguous implication or logical deduction. The paper speaks to the point: they have the power in clear, unequivocal terms, and will clearly and certainly exercise it.[213] [Page 353]

    There are a lot of "strong links" to the final wording. Bogus is simply presenting one that has been basically ignored. But, as I said above, if you are going to try to divine the "intent" of the Founders, you have to weigh all the record.


  4. Truly fascinating.

    I never really thought much about slave revolts in America, but I can see how it would really affect thinking (and that this thinking would impact the evolution of American politics).

    I therefore summon the master!

    Chief, would you, pretty please, consider adding the Stono 1739 slave rebellion (or some similar event) to your decisive battles list? It looks like a perfect match with some of the other hopeless small actions you have covered.

  5. Al-

    I used the word "motives". That slave owners supported the 2nd Amendment does not mean that they discounted the threat of a standing federal army, or that the slave states wished to retain their militia solely because they feared slave revolts. Bogus talks about the poor quality of the militias during the Revolutionary War as if that were a reason to disband them. Yet there was little support for an extensive standing army either.

    He assumes that there was no fear of foreign invasion, but Britain did remain hostile, exercised control of the seas and held Canada . . .

    Then there's the wider historical context of the times . . .

    In the Declaration of Independence, it states as part of the list of grievances against the British King:

    -He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

    He has affected to render the Military independent of and superior to the Civil Power.

    He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

    For quartering large bodies of armed troops among us:

    For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

    . . .

    He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.-

    This of course before the Revolutionary War.

    Bogus assumes that Congress having the power to raise military forces precluded the militias, but the idea was seemingly to only raise these more extensive federal forces only in actual times of crisis . . . as the subsequent history indicates.

    The whole paper reads like a polemic to me. While interesting, he very much has his view which imo rests of several questionable assumptions . . .

  6. seydlitz-

    Whether or not Bogus has an agenda, he legitimately identifies "intents" (or "motives" as your call them) which have not been part of the discussion to date. Whether or not a given intent is the "main" intent, in the judicial review of law, both "legislative history" and "legislative intent" are guiding factors. When there is clearly no single written "intent" in most legislation, nor the Constitution, all that can be done is refer to the historical record - the complete historical record.

    In his Introduction, Bogus writes, "The Second Amendment was not enacted to provide a check on government tyranny; rather, it was written to assure the Southern states that Congress would not undermine the slave system by using its newly acquired constitutional authority over the militia to disarm the state militia and thereby destroy the South's principal instrument of slave control. In effect, the Second Amendment supplemented the slavery compromise made at the Constitutional Convention in Philadelphia and obliquely codified in other constitutional provisions.

    I disagree with the author's implication that the Amendment was written solely for protecting slavery, and I equally disagree with the implication that the Amendment wasn't written as a check on government tyranny. Both of these were a reason for the final wording, neither was the reason.

    However, Patrick Henry, among others, clearly stated in the record of the debate that a state controlled "militia" was necessary to ensure the ability to repress a slave rebellion. Additionally, he warned of the threat of slaves being freed by being recruited into a federal militia ("manumission") by the proposed wording of the Amendment.

    I have never proposed tossing the 2nd Amendment, but I have said it deserves being "revisited". As Bogus points out, it has received scant judicial review, and virtually all "academic" review has been for the purpose of supporting a partisan position.

    Again, I offered this paper by a reasonably respected law prof to give an example of what I stated above:

    The point is that the "Founders" expressed a wide range of intents pertaining to this amendment, and the end result was not some divine revelation of perfection, but a compromise document appeasing some significant regional differences.

    We can argue "main" versus otherwise, but "main" does not negate each and every other intent being served. If "revisiting" the subject is limited to only one intent of the subject, the end result is going to be highly suspect.

    Since the 2nd Amendment has risen almost to "Sacred" status, I think it's time to honestly investigate every expressed intent therein, and then decide what we, as a People, wish our long term intent to be. In short, do we discuss the whole history or not? Bogus offers historical fact. How we deal with it is another issue. Since the document is unquestionable one of "compromise", ignoring what was being compromised, and why, is lame. Whether what was compromised is a significant issue cannot be determined if it is simply cast off as "not the main".

    While on the subject of "militia", perhaps Chief might speak on the subject of "Federal Recognition" as it pertains to the National Guard. Very interesting subject, and not something with which someone without NG service would be familiar, and very germane to the whole "militia" subject.

  7. Al-

    I think we do need another look at the 2nd Amendment, but I think this the wrong way to do it. Linking it directly with slavery is an easy way to "win" the argument, or rather close down any discussion. The essence of a dialogue is that both sides question their views throughout the discussion with the object being finding the most "objective" view . . . That is not going to happen by tying the 2nd Amendment directly to the evil of slavery . . . so it does seem that Bogus has a political ax to grind although he makes an interesting argument. The paper is well worth reading as you mention, and I thank you for bringing it to my attention . . . but this will not be the beginning of the debate that you hope for . . .

  8. I deeply thank Al for bringing this paper forward. While internal security is clearly a task of the state militia, I had completely neglected the need for the state military to maintain rule over the slaves.

    This aspect of American military history is completely absent from all the books I have read. I wonder if there are any lessons for the current round of bushfire wars in the experiences of the southern state militias.

  9. seydlitz

    We are talking past each other. In revisiting the 2nd Amendment, I feel it is of inestimable value to understand its full history and intent, so that the "revisit" comes to the table with a complete understanding of how the finally adopted wording came into being. Like it or not, slavery, "protection against an oppressive government", insurrections and other factors led to the Amendment. If Patrick Henry was so worried about protecting the institution of slavery that he saw a compelling reason to press for a specific wording of any and all parts of the Constitution, that's worth knowing.

    Like it or not, there already "bias", based in an incomplete understanding of all the intents at play in the crafting of the Amendment, that is effectively and intentionally "closing down discussion". If nothing else, the "slavery issue" illuminates one underlying difference in 18th Century societal mores that led to the Constitution and Amendment as written. Anyone who thinks we could "revisit" solely in terms of contemporary mores and issues, without any regard to the past, or visa-versa, is smoking funny cigarettes. Perceptions of "why" the Amendment exists, however partial or erroneous in basis, are already deeply rooted in the public discourse and will bias any “revisit”.

    One scholar I held in very great esteem, Dr John Meyendorff, discussed the impact of what he termed the "Accidents of History" versus the "Forces of Society on History" on subsequent outcomes. By that, he was referring to the equivalent of unintended consequences of one historical environmental element on a relatively unrelated historical result. While the "Accidents of History" can be causal, they are not intentional, and one must take that into consideration. Thus, in the subject matter he was discussing at the time, the society in question was not to "blame" for the manifestations being discussed, as the manifestations were a truly understandable, in hindsight, outgrowth of the situation the "Accidents of History" imposed, quite subtly, upon them. However, when society forces its will, by knowing commission or omission, on the course history, that’s a different issue.

    When viewing the impact of slavery upon the US, it is hard to relegate any aspect of it to the "Accidents of History". There were indeed societal imperatives that had a direct impact on the course of American societal affairs. If your are going to revisit any of America's "societal affairs", such as the writing of the Constitution and subsequent Amendments, avoiding any single clearly identified "Force of Society on History" is derelict, no matter how "ugly" or "biasing" it may be. After all, the historical event was indeed a result of those "ugly" and "biased" societal imperatives.

    The Constitution and the 2nd Amendment were indeed "compromise" documents. If we refuse to look at every element being compromised along with why and how, then we end up knowing little, other than that is just exists. And it is by that approach that it has been inaccurately elevated to an infallible, universal, fundamental and divinely inspired human imperative, rather than the best efforts of well intentioned, mere mortals, who demonstratively made other honest errors and omissions in the original document, as well as subsequent Amendments.

    Would it be productive to try to analyze the rationale for the Iraq War without addressing pre-existing, strident anti-Muslim bias in some significant sectarian religious quarters in the US. To me, that was ugly and could cause “bias”.

    As far as I am concerned. revisionist history provides no useful lessons, and intentional omissions are as ‘revisionist” as intentional baseless changes.

    I have not offered Bogus' work as a refutation of the 2nd Amendment, but as an opportunity to view legitimate (at the time) reasons behind it's crafting as written.

  10. Al-

    If it were up to me or you, we would have had this debate as a society some time ago. But it's not up to us, and unfortunately our country is divided almost to the point of coming to blows.

    Already there are those on the gun control side quoting Bogus's paper as S's link indicates. This is simply not the way to go forward imo, is rather only polarizing the situation more.

    I think it would be much better to reframe the whole argument, nothing to do with 2nd Amendment, but simply questioning the whole metaphor of gun = "freedom" . . . Is not the basis of freedom an informed citizenry (with or without guns)? If your freedom rests only on the potential of violence, which is what this argument essentially comes down to, then how free are you exactly?

    As it stands now this is just another red meat issue used to divide the rubes and allow the plutocrats to loot the country unmolested . . . Abortion, gay marriage, guns . . . all issues that purposely remain unresolved so as to rally the respective bands of stooges to the colors of the two Tweetle Dee and Tweetle Dumb corporate parties which will make sure things stay essentially the same, as in "business as usual friendly" . . .

  11. seydlitz: If your freedom rests only on the potential of violence, which is what this argument essentially comes down to, then how free are you exactly?

    That very valid, and fundamental question is, I strongly suspect, intellectually beyond the grasp of a major segment of the population.

    When I was about six years old, my Dad said, "One of the signs of increasing maturity is that you see fewer and fewer who appear to be of great stature on the horizon." I'm not sure I see too many of modest stature any more. The Pub is a breath of fresh air.

  12. Al -

    Patrick Henry's word are a strong basis to give Dr B's paper credibility. I do think it was one of the prime motivators for the second amendment. Stono was not the only slave rebellion in that century in America. That and the news from other slave rebellions in Haiti, Jamaica, other Caribbean Isles, Brazil, and on the high seas must have been in the minds of Governor Henry and many others at that time.

    It is unfortunate though that Dr B chose Bellesiles as one of his contributors. The stripping of the Bancroft Prize from Bellesiles will cheapen Dr B's works in the eyes of many who never wanted to believe his premise in the first place. I think though that Bellesiles had been the the victim of a political correctness campaign by the NRA. His primary detractor Clayton Cramer is a world renowned gun rights activist. But the Bancroft is awarded by Columbia U. in New York so I am wondering if the NRA reaches that far, corporate sponsors maybe???? In any case, seydlitz is right that this work by Dr B will also be attacked by the gun-rights propaganda machine. It has already started.

  13. Mike-

    I am not about to say what might have been the "prime" motivator, as it's a complex piece of history. However, slavery appears to have been a motivator, and slavery was a serious issue at the time. Thus, any and all roads to protect the institution of slavery would seem likely to be pursued, and Patrick Henry is quite explicit in this regard.

    Since Bogus wrote this in 1998, it was before Bellesiles' work was found lacking. Unfortunately, Bogus does cite quotes in Bellesiles work that were taken out of contest.

    That the paper has been relatively obscure since 1998 is interesting.

  14. Al -

    I was in no way saying it was the 'prime' motivator. What I thought I stated above was " of the prime motivators...".

  15. mike

    It is difficult for me to get my head around the whole slavery issue, but of course it had been outlawed for quite some time before my birth. However, the historical record does, indeed, show that it was a "hot button" issue of the times. And it also appears that the pro-slavery camp was a lot more committed to skewing the "compromise" over the issue to form a "union". To be honest, there was no real "compromise", as the pro-slavery forces lost nothing in the final bargain via "States Rights", and blacks were universally non-citizen, partial persons in all the States. And, of course, slaves could not seek seek refuge in non-slavery states, due to the "Fugitive Slave" Provisions of Art IV and subsequent federal "Fugitive Slave Laws".

    Americans tend to sidestep this lovely part of our history.

  16. Just for historic reference and perspective, there were slaves that were militia members, just as there slaves that were members of escaped slave hunting posses - and these slaves did carry guns.

    Furthermore, slaves were often issued guns for the purpose of hunting wild game and, if needed, to defend the plantation.

    Bogus is attempting to equate the 2A with slavery and thus color it (the 2A) morally repugnant as well as irrelavant today. It's a good, though dishonest try, and it's gaining traction amongst gun grabbers.

    I see the slavery v 2A issue as being a double edged sword. The laws of several southern states concerning the circumstances in which a slave may have carried a gun read like something out of modern England's or New York's statutes. There must be expressed written permission by the slave owner for that individual slave to carry (i.e permitting at the discretion of the "boss-man"), guns must be locked up at night in a central location controlled by the slave owner, they can only be carried into certain areas and are forbidden in others, etc, etc.

    So, do gov Cuomo and other gun controlling pols see us as "slaves"? Because the laws they want to impose are the same as those faced by slaves. Whereas free men, historically, can be recognized as such, in part, by their ability to freely own and carry weapons. Limited gun ownership = slave. Unlimited gun ownership = free man. Bogus seeks to highlight this disction which I think works as much for him as against him; assuming his real agenda is to repeal the 2A and grab guns and assuming that Americans still want to be free men.

    At any rate, I think given the large body of background discussion available, it's a tremendous stretch to say that the 2A was *all* or even mostly about slavery. That version just ain't in the historic record.


  17. Entering the discussion late, and without much of a background in the civil militias of the antebellum South, my thoughts would be, in no particular order:

    1. I suspect that the main motivations for the 2nd Amendment amongst the Framers were a combination of avoiding a standing Army, as seydlitz pointed out, and, particularly, avoiding the expense of a standing Army. I think the whole "well-regulated militia" clause points us in that direction. The Framers weren't thinking of the armed citizen as a potential tyranny-brake (since the whole point of the exercise was to craft a system of government that was itself a check to tyranny; if the citizens of the new nation had to rebel against the very system of government that the Framers were crafting then that government would have already broken down and the strictures of its Constitution would have become meaningless) or, particularly, as an encomium for private firearms ownership but as a warrant for having "militias" - in the 18th Century sense of "trained bands" or local defense organizations - that would maintain their own weapons and equipment at their own expense during peacetime but be liable for national service during war.

    2. These southern anti-slave-insurrection militias may well have been a piece of this but I don't see them as a critical piece; there seems to have been little or no scholarship that suggests that these organizations were featured in any of the Federalists, say, that discussed the new nation's military or the question of private firearms. I agree with avedis - there's just no "there there" on this issue.

    3. What I disagree with is avedis' formulation that "limited gun ownership = slave". Beyond the on-you-face historical ridiculousness (lots of free societies restricted private weaponry without relying on slavery to do so) the counterposition assumes that freedom comes from armed force. Seydlitz has already done a good job of ridiculing that notion, but let me instead examine the simple physics of armed force.

    One of the most fundamental principles of civil society - ever since there has BEEN civil society - is the principle of internal disarmament.

    When we're all in the fucking Hobbesean State of Nature we HAVE to go armed; there is no Law, each one of us has to assume that the Other is both capable and willing of using force to overcome us and work their will on us.

    But Heinlein was full of shit; an armed society is by its nature an IMpolite society so long as at least one of those armed people believes he's (or, worse, really IS) capable of defeating the others in combat.

    And we know from human history that there will ALWAYS be people who overestimate their skills or strengths. Or are just flat-out fucking stupid. Or drunk. Or impulsive. Or angry. Or nuts.

    So let everyone go armed and you will, inevitably, have combat between the "armed citizens" An armed society, in fact, naturally becomes what ours is today; a society in which a minor argument, a traffic accident, a psychological emergency can translate in moments into dead and wounded people.


  18. (con't from above)

    So the first thing that ANY civil society does is place a ring of armed soldiers between them and the outsiders...and then cajoles those INSIDE the ring to put their weapons away.

    Because then you get to have your arguments, and drunks, and crazies...and while people may get hurt, they stand a good change of "not dying".

    So if were were adults, we'd look around and think "Hmmm...given the potential downsides (versus the largely-entertainment-based-or-outright-decptive-upsides) is there any sensible reason for a private citizen to have the capability to, say, maintain a sustained rate of fire of 30 rounds per minute for over a full minute?" and act accordingly.

    However, given the weight that the largely nonsensical Wolverines! fantasies and inane rebellion tropes have on a potential national discussion about sensible practical ways to reduce the capacity of the individual to inflict rapid mass casualties using private firearms, I have no hope that such a discussion will ever happen.

    4. Actually, Al, my take on the whole "militia" issue is outlined above. The current USAR/ARNG are really not "militia" as the Framers would have considered them. But, then, those "militias" were pretty much shot in the ass by the pathetic performance of said militias in things like Shays and the Whiskey Rebellions along with the War of 1812. We have no real equivalent to them today.

  19. Chief, your point about armed society becoming an IMpolite society, traffic accidents and debates over the superbowl becoming scenes slippery with spent brass and blood, etc does not escape me.

    However, even the most liberal of liberals practically envisions NOT a society free of guns - not even free of assault rifles. Rather, they envision lots of guns with lots of magazine capacity and lots of sustained rate of fire. It's just that those weapons are to be ONLY in the hands of law enforcement and military personnel.

    Take a look at the footage from Sandyhook. Long after the lone gunman was dead there was LE running all over the scene, all brandishing the dreaded assault rifles. There were more assault rifles than there were victims.

    Observe any scene where LE becomes involved at a level of more than a squad car or two and you will plenty of assault rifles and cops geared up to the point of resembling, very closely, Darth Vadar.

    Do we have a polite society when govt agents show up anywhere and every where geared up like they are jumping off an attack on an AQ stronghold in the Hindu Kush?

    This is NOT about about gun control, it's about who controls the guns. That is my main issue with the whole movement.

    And i think my objection brings me in line with the founders' thinking. Which brings me back to my statement that free man = armed man and disarmed man = slave. Because we haven't trascended that Hobbesean State of Nature. At best we are just transferring the teeth and claw bearing to a select few paid to do so on our behalf.

    Then we have to trust that select few to not turn said teeth and claws on us. Maybe that's the way to go, maybe not. But I think it's best to not fool ourselves into thinking that because we have disarmed ourselves we have escaped the jungle.

    If our handing in our guns means the end of the jungle then let's set a date at which time LE hands in its assault gear as well. Right?


  20. Chief- Again, I said defense of slavery was "A" factor, not just in the stated debate on the 2nd Amendment, but numerous actual provisions of the Constitution. It was not only a given, but a given necessary to form the "Union". In short, not all intent was based on what we currently approve.

    Yup, the framer's ideas of militia failed miserably as times changed things radically. The NG is the result of that failed idea of the militia, and while technically a descendant, the "genetic" purity has been long lost. Perhaps our radical right is really pining for the "purity" of the Jukes and Kalakak family lines?

    It's not just polite versus impolite society, but, I would offer, a fear of the outcome of a somewhat democratic process that frightens the Right Wing. While they basked in the glory of being the white majority, that has been slowly chipped away, and now they have to contend with the "horror" of being outnumbered, and their idea of our great society is to take up arms and kill the majority. Their way of life is too precious to be subject to the ballot box. At least a ballot box with full access. (Interesting slogan – Full access to guns, not the ballot box, will make us great!

    A while back when one of the Faux News talking empty heads (O'Reilly, I think) bemoaned how "white people were becoming the new minority", the video went somewhat viral over here. One of my regular coffee buddies, Andreas, a very astute and humorous commentator on the human condition said something like:"

    This is nothing new in the free market. It was all a business decision based on short term profits without attention to long term ramifications. Rather than sterilize the slaves, and purchase adult replacements on the open market, your Southerners took the less expensive approach and bred their replacements. And, breeding was so profitable, it was encouraged at a greater than normal rate. Short term profits blinded businessmen to long term ramifications. And thus the market was flooded, and by the time the white guys realized they were breeding out of control, your Mr Lincoln had removed their authority to thin the herd. The rest is history.

    I had once suggested Andreas make an occasional contribution here. His humorous, but spot-on spontaneous remarks are grand. He said, "Yes, I'm very spontaneous. If I stop to type my wisdom, instead of just saying it, the spontaneity will be lost, because I will have to use my brain in the process of operating my fingers."