The Second Amendment was Adopted to Protect Liberty, Not

The Second Amendment was Adopted to Protect

Liberty, Not Slavery: A Reply to Professors Bogus

and Anderson

STEPHEN P. HALBROOK*

J.D., Georgetown University Law Center; Ph.D., Philosophy, Florida State University. Former

Assistant Professor of Philosophy, Tuskegee University, Howard University, and George Mason

University. Attorney at Law, Fairfax, Va.; Senior Fellow, Independent Institute. Argued Printz v. United

States, 521 U.S. 898 (1997), and other Supreme Court cases, and represented a majority of members of

Congress as amici curiae in District of Columbia v. Heller, 554 U.S. 570 (2008). Represents the National

African American Gun Association as amicus curiae before the Supreme Court in New York State Riﬂe

& Pistol Ass’n v. Bruen, No. 20-843. Books include The Right to Bear Arms: A Constitutional Right of

the People or a Privilege of the Ruling Class?; The Founders’ Second Amendment; Securing Civil

Rights: Freedmen, the Fourteenth Amendment, & the Right to Bear Arms; Firearms Law Deskbook; and

BSTRACT

Was the Second Amendment right of the people to bear arms adopted to

protect liberty or to perpetrate slavery? The latter was the thesis ﬁrst

pub-

lished

by Professor Carl Bogus in a 1998 law review article “The Hidden

History of the Second Amendment.” His basic argument is that the

Amendment was adopted so that the Southern states could maintain

mili

tias

to suppress slave rebellions. New life was given to the thesis by

Professor Carol Anderson in her 2021 book The Second

, which asserts

that the Amendment was “not some hallowed ground but rather a bribe,

paid again with Black bodies.”

As Bogus concedes, no direct evidence supports the thesis. Instead, historical

fact refutes it. The predecessor of the Amendment was the English Declaration

of Rights of 1689, which protected the right of Protestants to have arms.

England had no domestic slave population. Beginning in 1776, some states

adopted bills of rights that recognized the right to bear arms. Three of them

were Northern states that had abolished slavery. When the federal Constitution

was proposed in 1787, it was criticized for lacking a bill of rights. Demands for

recognition of the right to bear arms emanated from antifederalists, including

abolitionists, in the Northern states, while several Southern states ratiﬁed

with

out

demanding amendments at all.

New Hampshire, whose

bill of rights was read to abolish slavery, was the ﬁrst

state to ratify the Constitution and demand a prohibition on the disarming of

citizens. The Virginia ratifying convention followed. While some supported an

amendment stating that the states could maintain militias if Congress neglected

the same, support for the militia was largely tied to rejection of a standing

army, not maintenance of slavery. The right to bear arms was proposed in a

declaration of rights that had nothing to do with slavery. New York ratiﬁed

next, also proposing recognition of the arms right.

575

James Madison introduced what became the Second Amendment in the ﬁrst fed-

eral

Congress, and it worked its way through both Houses without any hint of

concern for the interests of slavery. Congress rejected the separate structural

amendments that included a proposal for more state powers over the militia.

Rhode Island, the last of the original thirteen states to ratify the Constitution,

demanded both recognition of the right to bear arms and abolition of the slave

trade. Vermont was then admitted as a state

—it had abolished slavery and rec-

ognized

the right to bear arms in its 1777 Constitution—and it now ratiﬁed the

Second Amendment.

Contrary to Bogus, no

secret conspiracy was afoot to make “the right of the

people” to bear arms an instrument of slavery. Instead, the abolitionists, and

then the framers of the Fourteenth Amendment, would use those words to show

that “the people” meant just that. African Americans were people and were

thus entitled to all of the rights of Americans. The failure at the Founding was

not that the rights of citizens were accorded to whites, but that these rights were

not accorded to all persons without regard to race. By its very terms, the

Second Amendment is a bulwark for the protection of the fundamental rights of

all of the people.

ABLE OF CONTENTS

INTRODUCTION: A“HISTORY” SO “SECRET” THAT IT WAS NOT

DISCOVERED UNTIL 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 577

. . . . . . . . . . . . . . I. O

RIGIN AND TEXT OF THE SECOND AMENDMENT 580

. . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

A. The Second Amendment Derived from the English

Declaration of Rights of 1689, Which Plainly Had No

Relevance to Slavery 580

. . . . .

. . . . . . . . . . . . . . . . . . . . .

B. Laws Excluding Slaves from the Rights of “the People” in the

Bill of Rights Did Not Imply that the Guarantees Were

Adopted to Protect Slavery 581

II. I

MPETUS FOR RECOGNITION OF THE RIGHT TO BEAR ARMS

ORIGINATED FROM THE NORTHERN STATES WHERE SLAVERY WAS

ABOLISHED OR DYING OUT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 584

A. Pennsylvania Becomes the First State to Recognize the Right

to Bear Arms

and to Abolish Slavery . . . . . . . . . . . . . . . . . . . 584

B. Massachusetts Recognizes Unalienable Rights, Including the

Right to Bear Arms, and its Courts Declare Slavery

Unconstitutional 586 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

576 T

HE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

C. Four Southern States Ratify the Constitution Without

Demanding a Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 588

D. New Hampshire Recognizes Unalienable Rights, Which Its

Courts Read to Abolish Slavery, and Demands that the

Federal Constitution Prohibit Disarming Citizens . . . . . . . . . 590

III. T

HE DOMINOS BEGIN TO FALL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 592

. . . . . .

. . A. Virginia Tips the Scales in Favor of a Bill of Rights 592

. . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

B. New York Ratiﬁes the Constitution and Demands a Bill of

Rights 598

IV. T

HE SECOND AMENDMENT IN CONGRESS: FROM MADISON’S

PROPOSAL TO ADOPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 599

V. H

OLDOUTS FOR THE BILL OF RIGHTS . . . . . . . . . . . . . . . . . . . . . . . 605

. . . . . .

. . . . . . . . . . . . . . . . . . . .

A. North Carolina Waits to Ratify the Constitution Until the

Bill of Rights Is Proposed 605

B. Having Abolished Slavery, Rhode Island Demands

Recognition of the Right to Bear Arms and Abolition of the

Slave Trafﬁc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607

C. Vermont Adopts the First Constitution Both to Recognize the

Right to Bear

Arms and to Abolish Slavery, and Later Ratiﬁes

the Second Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608

VI. T

HE AFTERMATH: EXTENDING SECOND AMENDMENT RIGHTS TO

ALL OF “THE PEOPLE,” INCLUDING AFRICAN AMERICANS . . . . . . . . 610

ONCLUSION: HIDDEN HISTORY–OR NO HISTORY? . . . . . . . . . . . . . . . . . 615

NTRODUCTION: A“HISTORY” SO “SECRET” THAT IT WAS NOT DISCOVERED UNTIL

1998

The Bill of Rights recognizes “the right

of the people” “peaceably to assem-

ble,”

“to keep and bear arms,” and “to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures.”

These rights and others

were denied to African Americans in the slave states at the time of America’s

found-

ing.

It would take the abolition of slavery and the adoption of the Fourteenth

1. U.S. CONST. amends. I, II, IV.

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 577

Amendment to ensure that all persons, Black and white, were recognized as

included in “the people” entitled to these rights.

Some argue the Second Amendment was adopted to protect slavery. Professor

Carl Bogus originally advanced

this thesis in a 1998 law review article “The

Hidden History of the Second Amendment.”

His basic argument is that the

Amendment was adopted so that Southern states could maintain militias to

sup

press

slave rebellions. As Bogus freely concedes, no direct evidence exists of his-

torical

records supporting the thesis.

The Bogus thesis ﬂares up periodically among advocates of increasing crimi-

nalization

of ﬁrearms ownership. In response to one such article in 2013,

Thom Hartmann, The Second Amendment was Ratiﬁed to Preserve Slavery, T

RUTHOUT (Jan.

15, 2013), http://truth-out.org/news/item/13890-the-second-amendment-was-ratiﬁed-to-preserve-

slavery [https://perma.cc/LD4F-8CJ8].

Professor Paul Finkelman—himself a supporter of gun control—took the argu-

ment

to task, calling it “

mostly

wrong, and very misleading.”

Paul Finkelman, 2nd Amendment Passed to

Protect Slavery? No!, T

HE ROOT (Jan. 21, 2013,

12:25 AM), https://www.theroot.com/2nd-amendment-passed-to-protect-slavery-no-1790894965

[https://perma.cc/M9Y2-6W7L].

More recently, in her 2021 book The Second: Race and Guns in a Fatally

Unequal America, Professor Carol Anderson maintains: “The Second Amendment

was

. . . not some hallowed ground but rather a bribe, paid again with Black

bodies.”

Despite its title, very little in this book is actually about the meaning and

adoption of the Second Amendment. Its focus is racial injustice in American history.

Few would quarrel with the account of many instances in which African Americans

have been deprived of Second Amendment rights.

As to the meaning and reasons for adopting the Second Amendment, Anderson

cites no original sources. One of the secondary sources cited is this author’s book,

The Founders’ Second Amendment.

The book references antebellum Southern

state laws that banned possession of ﬁrearms by slaves, ending with the quotation:

“Citizen(s) had the right to keep arms; the slave did not.”

This author has docu-

mented

the antebellum slave codes and the postbellum Black codes in greater

detail elsewhere.

But the principle secondary source on which Anderson relies is Bogus’s

“Hidden History,” which has never gained traction as credible in Second

Amendment scholarship. Anderson has now resurrected and popularized Bogus’s

thesis, to the possible acclaim of those who support increased criminalization of

ﬁrearms possession. But African Americans are invariably on the receiving end

2. Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. DAVIS L. REV. 309 (1998).

3. Id. at 372.

6. C

AROL ANDERSON, THE SECOND: RACE AND GUNS IN A FATALLY UNEQUAL AMERICA 32 (2021).

7. S

TEPHEN P. HALBROOK, THE FOUNDERS’ SECOND AMENDMENT (2008).

8. A

NDERSON, supra note 6, at 5 (quoting HALBROOK, supra note 7, at 128, 142, 166, 168).

9. S

TEPHEN P. HALBROOK, THE RIGHT TO BEAR ARMS: A CONSTITUTIONAL RIGHT OF THE PEOPLE OR

PRIVILEGE OF THE RULING CLASS? 256–63 (2021) (discussing slave codes); STEPHEN P. HALBROOK,

ECURING CIVIL RIGHTS: FREEDMEN, THE FOURTEENTH AMENDMENT, & THE RIGHT TO BEAR ARMS 1–50

(2010) (discussing Black codes and Congressional action thereon).

578 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

of mala prohibita ﬁrearm prohibitions that result in felony records and imprison-

ment of persons who peaceably possess ﬁrearms for self-defense. For instance,

New York punishes the possession of a loaded ﬁrearm with 3.5 to 15 years

imprisonment unless one has a license that is unavailable to the general public.

“

In 2020, while Black people made up 18% of New York’s population, they

accounted for 78% of the state’s felony gun possession cases.”

Brief of the Black Attorneys of Legal Aid et al. at 14, N.Y. State Riﬂe & Pistol Ass’n v. Bruen,

No. 20-843 (July 20, 2021), 2021 WL 4173477, at *14 (citing NYPD Arrests Data (Historic), NYC

PEN DATA (June 5, 2018), https://data.cityofnewyork.us/Public-Safety/NYPD-Arrests-DataHistoric-/

8h9b-rp9u [https://perma.cc/73M9-K39D]).

Anderson’s book was received uncritically by media outlets such as CNN and

the New York Times,

See, e.g.,

Randall Kennedy, Was the Constitutional Right to Bear Arms Designed to Protect

Slavery?, N.Y. T

IMES (May 28, 2021), https://www.nytimes.com/2021/05/28/books/review/the-

second-carol-anderson.html [https://perma.cc/XWH6-NJ7R]; John Blake, Second Amendment Is

Not About Guns—It’s About Anti-Blackness, CNN (May 30, 2021), https://www.msn.com/en-us/

news/us/second-amendment-is-not-about-guns-it-s-about-anti-blackness-a-new-book-argues/ar-

AAKxczm [https://perma.cc/L8JC-6SGY].

and its thesis was welcomed by the gun-ban lobby such as

Brady (previously named Handgun Control).

See 140: The

Second Amendment in an Unequal America, B

RADY (July 30, 2021), https://www.

bradyunited.org/podcast/episodes/second-amendment-racially-unequal-america [https://perma.cc/5R5D-

B2G6].

Given her signiﬁcant reliance on

Bogus’s thesis from “Hidden History,” the mainstream acceptance of Anderson’s

work also resulted in the unknowing mainstream acceptance of Bogus’s

ahistori-

cal thesis.

This Article is

limited to the meaning and reasons for adoption of the Second

Amendment. The predecessor of the Amendment was the English Declaration of

Rights of 1689, which protected the right of Protestants to have arms for their

defense. Beginning in 1776, some states adopted bills of rights that recognized

the right to bear arms. Some of the Northern states began to pass laws to abolish

slavery. When the federal Constitution was proposed in 1789, the antifederalists

criticized it for lacking a bill of rights, including recognition of the right to bear

arms, and also found fault with the power over the militia given to Congress.

Some of these antifederalists were also abolitionists who sought the end of

slavery.

Simply put, the Bogus thesis is that the Virginia convention that ratiﬁed the

Constitution somehow reached an unstated understanding with the Northern

states to ensure strong state control over the militia to protect slavery. James

Madison drafted the Second Amendment to consummate the secret deal. Bogus

fails to analyze the other state conventions in which champions of the right to

bear arms were also champions of the abolition of slavery. This Article tells the

entire story.

But ﬁrst, consider the text: “

A well

regulated militia, being necessary to the se-

curity

of a free state, the right of the people to keep and bear arms, shall not be

10.

11.

12.

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 579

infringed.”

Use of “the people” was subversive in the long run to limiting the

right to white people. As abolitionists would argue, the explicit text here, and in

other Bill of Rights guarantees, was plainly inconsistent with excluding African

Americans from the right. Thus, the defect at the founding was not in recognizing

the rights of white Americans, but was in not recognizing the rights of Black

Americans. As is demonstrated below, the impetus for recognizing the right to

bear arms came from the Northern states, which had abolished or were in the pro

cess of abolishing slavery. Accordingly, the Second Amendment’s origins are not

rooted in the South’s attempts to preserve the institution of slavery.

The Amendment’s militia clause states a principle of political philosophy: that

regulated militia is necessary for the security of a free state. This principle is an

important reason for the recognition of the right to keep and bear arms. But the

Amendment is not a delegation or reservation of state or federal power. Contrary

to the arguments of Professors Bogus and Anderson, the Amendment did nothing

to alter the following powers of Congress in Article I, § 8, of the Constitution:

To provide for calling forth the Militia to execute the Laws of the Union, sup-

press Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for gov-

erning such Part of them as may be employed in the Service of the United

States, reserving to the States respectively, the Appointment of the Ofﬁcers,

and the Authority of training the Militia according to the discipline prescribed

by Congress. . . .

As will be seen, much of the debate over the Constitution raised by Professors

Bogus and Anderson concerns not the Second Amendment, but Congress’s power

over the militia in Article I,

§ 8. The Second Amendment did nothing to alter the

federal-state balance of power over the militia, including the powers delegated to

Congress and the reservation of powers to the states. Instead, it recognized the

right of the people to keep and bear arms.

I. O

RIGIN AND TEXT OF THE SECOND AMENDMENT

A. The Second Amendment Derived from the English Declaration of Rights of

1689, Which Plainly Had No Relevance to Slavery

The right to keep and bear arms long antedated the Second Amendment, which

was derived in part from the English Declaration of Rights of 1689. Recognition

of the right had nothing to do with slavery.

In the Glorious Revolution of 1688, the Catholic King James II—who had

car

ried

out a policy of disarming Protestant subjects—was overthrown and replaced

by William and Mary. The Declaration of Rights of 1689 listed the ways that

James II attempted to subvert “the Laws and Liberties of this Kingdom,”

13. U.S. CONST. amend. II.

580 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

including: “By causing several good Subjects, being Protestants, to be disarmed,

at the same Time when Papists [Catholics] were both armed and employed, con-

trary to law.”

The act accordingly declared thirteen “true, ancient and indubita-

ble rights” among them: “That the Subjects which are Protestants, may have

Arms for their Defence suitable to their Conditions, and as allowed by Law.”

The Declaration was plainly not grounded in the need to suppress a domestic

slave population; England had none. However, limitation of the right to the

ma-

jority

Protestant population made possible laws disarming the minority Catholic

population.

In drafting the Second Amendment, James Madison recognized the

fallacy of limiting arms to Protestants. He thus extended the right to “the

peo-

ple.”

Moreover, as St. George Tucker would write: “The right of the people to

keep and bear arms shall not be infringed

. . . and this without any qualiﬁcation as

to their condition or degree, as is the case in the British government.”

Bogus concedes: “This Article does not quarrel with the premise that the

Second Amendment was inspired by the Declaration of Rights.”

He claims that

the 1788 Virginia ratifying convention “provided the impetus for embodying a

right to bear arms in the Bill of Rights,” but that “Madison and the Founders

bor

rowed

more than they created. A right to have arms provision was contained in

the English Declaration of Rights of 1689, a document considered part and parcel

of the English Constitution.”

His discussion of the Declaration includes nothing

that supports the simplistic thesis that the Second Amendment was invented to

protect slavery.

B. Laws Excluding Slaves from the Rights of “the People” in the Bill of Rights

Did Not Imply that the Guarantees Were Adopted to Protect Slavery

In the colonial, founding, and early republic periods, Americans were

recog-

nized

as having the right to keep and bear arms. The major exception was the

slave codes in the Southern states that prohibited slaves and, in some states, free

Blacks from the exercise of the right.

Slaves were deprived of all of the rights that would be set forth in the Bill of

Rights. The Second Amendment was not unique in that regard. St. George

Tucker summarized their plight thus:

14. The Bill of Rights (1689), 1 Will. & Mary, sess. 2, c.2.

15. Id.

16. See e.g., 1 Will. & Mary, sess. 1, c. 15 § 4 (1689).

17. James Madison, Notes for Speech in Congress (June 8, 1789), in 12 P

APERS OF JAMES MADISON

193, 193–94 (Charles F. Hobson & Robert A Rutland eds., 1979).

18. 1 S

T. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE, TO THE

CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE

COMMONWEALTH OF VIRGINIA 143 n.40 (1803).

19. Bogus, supra note 2, at 322.

20. Id. at 375–76.

21. Id. at 383–86.

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 581

To go abroad without a written permission; to keep or carry a gun, or other

weapon; to utter any seditious speech; to be present at any unlawful assembly

of slaves; to lift the hand in opposition to a white person, unless wantonly

assaulted, are all offences punishable by whipping.

Such provisions were included, for instance, in Virginia’s slave code of 1748.

Some of these activities would ﬁnd explicit protection in the First and Second

Amendments when exercised by “the people.” The First Amendment protected

“the freedom of speech” and “the right of the people peaceably to assemble.” But

the slave code strictly prohibited “the meetings of slaves” and punished “every

slave, present at any unlawful meeting.”

Of course, the fact that slaves were

deprived of First Amendment rights does not imply that the First Amendment

was adopted to protect slavery.

Virginia’s gun control provisions provided that “no negroe, mulattoe, or Indian

whatsoever, shall keep, or carry any gun, powder, shot, club, or other weapon,

whatsoever, offensive, or defensive.”

However, “every free negroe, mulattoe,

or Indian, being a house keeper, may be permitted to keep one gun, powder, and

shot: And all negroes, mulattoes, and Indians, bond or free, living at any frontier

plantation, may be permitted to keep and use guns, powder, shot, and weapons,

offensive, or defensive, by licence, from a justice of peace.”

Similar laws persisted through the antebellum period. Professor Anderson

relies in part on this author’s work detailing Southern state laws that banned

pos-

session

of ﬁrearms by slaves, ending with the quotation: “Citizen(s) had the right

to keep arms; the slave did not.”

The obvious purpose of these laws was to maintain the institution of slavery.

Had they been able to assemble, speak freely, and have arms, slaves would be

able to escape, defend themselves, and revolt. That did not mean that the right to

bear arms existed to protect slavery any more than did the right to assemble and

to free speech. It was the denial of these rights that protected slavery.

There is a chronological problem with the thesis that the Second Amendment

was adopted to suppress slave revolts. The last major slave revolt had taken place

a half-century before the Amendment was adopted. As described by Anderson, in

the 1739 Stono River revolt in South Carolina, twenty slaves raided a storehouse

where weapons were sold and seized arms. The number of slaves reached ninety

as they “carved a path of death and destruction through the colony en route, it

appears, to Florida.”

The South Carolina militia struck back and brutally

22. ST. GEORGE TUCKER, A DISSERTATION ON SLAVERY: WITH A PROPOSAL FOR THE GRADUAL

ABOLITION OF IT, IN THE STATE OF VIRGINIA 65 (1796).

23. 6 W

ILLIAM W. HENING, HENING’S STATUTES AT LARGE 107–08 (1748).

24. Id. at 109.

25. Id. at 110.

26. A

NDERSON, supra note 6, at 5 & 172 n.20 (quoting HALBROOK, supra note 7, 128, 142, 166, 168).

27. Id. at 15.

582 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

repressed the rebellion, killing many slaves.

Implying a cause-and-effect relation, Anderson then states: “Meanwhile,

whites, particularly on plantations were stacking up the arms.” She quotes a study

of probate records that concluded that “50% of all wealthholders in the Thirteen

Colonies in 1774 owned guns.”

The percentages were higher than average in

four southern states. (Without commenting on the study, probate records

underes-

timated

ﬁrearms ownership—Thomas Jefferson owned many ﬁrearms in his life,

but the inventories of his three estates included none.

)

That is quite a jump from 1739 to 1774, when impending conﬂict with Britain

was escalating, and colonists were scrambling to obtain more arms to resist the

redcoats. Gun ownership in the South may have been higher for several reasons,

given that it was a rural society with a hunting culture, continued conﬂict with

Indians, and yes, for some, fear of potential slave resistance.

But in 1774, the colonies were engaged in an escalating conﬂict with the

British, which would break out into open war the following year and would not

end until 1783. Some 25,000 people died in the American Revolution,

How Many People Died in the Revolutionary War?, R

EFERENCE (Mar. 31, 2020), https://

www.reference.com/history/many-people-died-revolutionary-war-237d2dd048292590 [https://

perma.cc/9U8H-HCY9].

which

dwarfed the relatively few deaths in the 1739 slave revolt, which took place in a

single colony. The events leading to and during the War for Independence, with

the horrendous amount of death and destruction that occurred, was paramount in

the minds of the Founders when they adopted the Second Amendment.

To determine why the Second Amendment was adopted, one must turn to the

history of how it was adopted and who adopted it. Bogus constructs a simplistic

theory, echoed by Anderson, that unstated machinations at the 1788 Virginia

rati

fying

convention virtually tell the whole story. But other states ratiﬁed the

Constitution as well and then ratiﬁed the Second Amendment. The complete

story must be told.

From the American Revolution through the adoption of the Second

Amendment, the impetus for recognition of the right to bear arms came more

from the Northern states, where slavery was abolished or dying, than from the

Southern states. In no way was the Second Amendment a devil’s bargain

extracted by the slave states from a reluctant North. The history of how this

occurred demonstrates the fundamental basis of the right to bear arms for self-

defense, resistance to tyranny, hunting, and other legitimate purposes.

The following

analyzes chronologically the adoption of the Constitution by

states in which demands for recognition of the right to bear arms was signiﬁcant.

Of these states, Pennsylvania and Massachusetts had state arms guarantees but

ratiﬁed without suggesting amendments, although there were strong demands for

28. Id. at 16.

29. Id. at 17 & 179 n.49 (emphasis added) (quoting James Lindgren & Justin L. Heather, Counting

Guns in Early America, 43 W

M. & MARY L. REV. 1777, 1800, 1803–04, 1806, 1817 (2002)).

30. H

ALBROOK, supra note 7, at 318–19.

31.

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 583

doing so. Both states had abolished slavery at that point. New Hampshire, where

slavery was considered illegal, was the ﬁrst state to adopt the Constitution and

demand a bill of rights, including that Congress may not disarm citizens.

Virginia was next, tipping the scales in favor of ratiﬁcation of the Constitution

while proposing amendments,

including a bill of rights to include the right to bear

arms and structural amendments to include state militia powers. Bogus focuses

on the Virginia Convention but ﬁnds nothing linking the right to bear arms to

slavery. New York ratiﬁed next and followed Virginia’s demand for a bill of

rights; slavery was on the decline there but not yet abolished at that time.

Next, James Madison proposed the Bill of Rights in Congress, where it worked

its way through until passage. The Second Amendment was understood there as a

measure to prevent tyranny. Congress rejected proposals amending the

federal-

state

balance regarding the militia.

An alliance of

three states remained with the goal of ensuring ratiﬁcation of the

Bill of Rights. North Carolina waited to ratify the Constitution until the Bill of

Rights was proposed. Rhode Island and Vermont, both of which had abolished

slavery, demanded recognition of an arms guarantee but waited to ratify the

Constitution until it appeared that the Bill of Rights would be ratiﬁed by

the states. No evidence exists that these two states were tricked into ratifying the

Second Amendment to protect slavery.

Bogus rests his claims by consideration of the Virginia Convention and

Madison’s proposals in the ﬁrst federal Congress. He concedes that no direct

evi

dence

exists in that context that the Second Amendment was adopted to protect

slavery. He ignores the big picture, namely the demands for recognition of the

right to bear arms in the Northern states that had already abolished slavery. The

Bogus theory collapses when the full story is told.

II. I

MPETUS FOR RECOGNITION OF THE RIGHT TO BEAR ARMS ORIGINATED FROM THE

NORTHERN STATES WHERE SLAVERY WAS ABOLISHED OR DYING OUT

A. Pennsylvania Becomes the First State to Recognize the Right to Bear Arms

and to Abolish Slavery

In 1776, Pennsylvania became the ﬁrst state to adopt a formal guarantee that

was a

precursor of the Second Amendment: “That the people have a right to bear

arms for the defense of themselves, and the state

. . . .”

In 1780, it became the

ﬁrst state to pass an act for the abolition of slavery.

An Act for the Gradual Abolition of Slavery, Act of Mar. 1, 1780, https://avalon.law.yale.edu/

18th_century/pennst01.asp [https://perma.cc/9QQ8-KNYG].

And in 1787, Pennsylvania

ratiﬁed the federal Constitution, with a strong minority in the ratifying convention

demanding a bill of rights, including the right to bear arms. That set the stage for

demands by other states culminating in adoption of the Second Amendment.

32. PA. CONST. of 1776, ch. I, art. XIII.

33.

584 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

The state’s 1776 constitutional convention was presided over by Benjamin

Franklin.

A contemporary wrote that the Pennsylvania Constitution “was under-

stood

to have been principally the work of Mr. George Bryan, in conjunction

with Mr. Can[n]on, a schoolmaster.

”

George Bryan, later a Justice of the

Pennsylvania Supreme Court, was the most inﬂuential member of the

conven-

tion.

Professor James Cannon of the College of Philadelphia contributed most

of the phraseology of the document.

Judge Bryan sought “to identify himself

with the people, in opposition to those, who were termed the well born.”

Also

instrumental was Timothy Matlack, who when once asked by a Quaker why he

wore a sword, replied: “That is to defend my property and my liberty.”

It is not surprising that these patriots would frame the Declaration of Rights

with the following two provisions. First: “That all men are born equally free and

independent, and have certain natural, inherent and inalienable rights, amongst

which are, the enjoying and defending life and liberty, acquiring, possessing and

protecting property, and pursuing and obtaining happiness and safety.”

Second:

“That the people have a right to bear arms for the defense of themselves, and the

state; and as standing armies in the time of peace, are dangerous to liberty, they

ought not to be kept up; And that the military should be kept under strict

subordi

nation

to, and governed by, the civil power.”

In 1780, Pennsylvania passed an Act for the Gradual Abolition of Slavery, the

ﬁrst law of its kind in the Western Hemisphere.

This law was “advocated, writ-

ten,

and its passage secured by George Bryan.”

As Vice President of the

Pennsylvania Executive Council, in 1777 Bryan urged passage of an abolition

law, but it did not succeed. By 1780, he succeeded in writing the law and a

lengthy defense thereof, and it passed.

Historian Burton Konkle adds: “So it

was that George Bryan became the father of legal emancipation in America,

under the inﬂuence of our great revolution for national independence

. . . .”

Bryan was also assisted by Timothy Matlack, secretary of the Executive Council,

34. J. PAUL SELSAM, THE PENNSYLVANIA CONSTITUTION OF 1776: A STUDY IN REVOLUTIONARY

DEMOCRACY 147 (1936).

35. A

LEXANDER GRAYDON, MEMOIRS OF HIS OWN TIME: WITH REMINISCENCES OF THE MEN AND

EVENTS OF THE REVOLUTION 286–87 (John Stockton Littell ed., 1846).

36. B

URTON ALVA KONKLE, GEORGE BRYAN AND THE CONSTITUTION OF PENNSYLVANIA, 1731-1791,

at 119 (William J. Campbell 1922).

37. Id. at 121.

38. G

RAYDON, supra note 35, at 287.

39. S

ELSAM, supra note 34, at 207 n.6.

40. PA. C

ONST. of 1776, ch. I, art. I.

41. Id., art. XIII.

42. See A

RTHUR ZILVERSMIT, THE FIRST EMANCIPATION: THE ABOLITION OF SLAVERY IN THE NORTH

124–37 (1967).

43. K

ONKLE, supra note 36 (noting dedication in front cover matter).

44. Id. at 164–65, 189–98. For a transcript of the law and Bryan’s defense of it, see supra note 33.

45. Id. at 198.

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 585

who worked hard to win its passage.

Chris Coelho, Timothy Matlack, Scribe of the Declaration of Independence, J. AM.

EVOLUTION (Aug. 24, 2021), https://allthingsliberty.com/2021/08/timothy-matlack-scribe-of-

the-declaration-of-independence/ [https://perma.cc/G5QZ-9M73].

On December 12, 1787, after a bitter debate in which the federalists defeated

the antifederalists’ push for a declaration of rights, the Pennsylvania convention

voted to ratify the federal Constitution.

That was followed by publication of the

antifederalist Dissent of the Minority demanding a declaration, including: “That

the people have a right to bear arms for the defense of themselves and their own

state, or the United States, or for the purpose of killing game; and no law shall be

passed for disarming the people or any of them, unless for crimes committed, or

real danger of public injury from individuals . . . .”

This was obviously not an

attempt to protect slavery.

The Dissent also included objections to various parts of the Constitution,

including “the absolute command of Congress over the militia,” which could be

made into “the unwilling instruments of tyranny.” It explained: “The militia of

Pennsylvania may be marched to New England or Virginia to quell an insurrec

tion

occasioned by the most galling oppression, and aided by the standing army,

they will no doubt be successful in subduing their liberty and independency.

”

George Bryan may have had a hand in drafting the Dissent, which he promoted

and sent to allies in other states.

His son, Samuel Bryan, claimed credit for

authorship of the Dissent.

George Bryan and other dissidents would reconvene in 1788 in the Harrisburg

convention. The convention called for an amendment guaranteeing “every

reserve of the rights of individuals” declared in the state constitutions and

sepa

rately

“[t]hat each state, respectively, shall have power to provide for organizing,

arming, and disciplining the militia thereof, whensoever Congress shall omit or

neglect to provide for the same.”

Thus, leading proponents of the right to bear arms in Pennsylvania were also

abolitionists. Pennsylvania had no hesitation in ratifying the Bill of Rights in

1790.

B. Massachusetts Recognizes Unalienable Rights, Including the Right to Bear

Arms, and its Courts Declare Slavery Unconstitutional

In many ways, the American Revolution began in Massachusetts, where the

Crown initiated efforts to disarm the colonists and the colonists defended

46.

47. 2 D

OCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 597–600 (Merrill Jensen

ed., 1976).

48. Id. at 623–24.

49. Id. at 638.

50. K

ONKLE, supra note 36, at 309–38.

51. 2 D

OCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 617 (Merrill Jensen ed.,

1976).

52. 2 D

EBATES OF THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL

CONSTITUTION 245–46 (Jonathan Elliot ed., 1836) [hereinafter Elliot].

586 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

themselves with arms. When British occupation troops approached Boston in

1768, the warning went out that “the Inhabitants of this Province are to be dis-

armed.”

Quoting the English Declaration of Rights, Boston resolved that all

inhabitants arm themselves.

When the redcoats sought to seize arms from the patriots in 1775, self-armed

colonists repulsed them at Lexington and Concord. They believed they had a right

to bear arms no matter that the Royal government aimed to conﬁscate them. They

fought to protect themselves from political slavery, not to protect chattel slavery.

As Professor Jonathan Turley humorously wrote, “The Minutemen at Concord,

after all, were not running to a Klan meeting in 1775.”

Jonathan Turley,

Second Amendment Latest Issue To Be Reframed Wrongly As ‘Racist,’ H

ILL

(July 28, 2021), https://thehill.com/opinion/judiciary/565177-second-amendment-latest-issue-to-be-

reframed-wrongly-as-racist [https://perma.cc/VS49-WNJU].

Article I of the Massachusetts Declaration of Rights of 1780 set forth both the

related principles that every person is born with unalienable rights, which is

wholly inconsistent with slavery, and that the people have a right to keep and

bear arms. First, the Declaration provided that:

All men are born free and equal, and have certain natural, essential, and

unalienable rights; among which may be reckoned the right of enjoying and

defending their lives and liberties; that of acquiring, possessing, and protecting

property; in ﬁne, that of seeking and obtaining their safety and happiness.

Second, it stated: “The people have a right to keep and to bear arms for the

common defence.”

This was the ﬁrst state bill of rights to use both terms “to

keep” and “to bear,” and this individual right to keep arms made them available

for all lawful purposes.

The author of the Declaration was John Adams, who had argued at the Boston

Massacre trial in 1770, defending the soldiers, that “Self Defence [is] the primary

Canon of the Law of Nature,” and that “the inhabitants had a right to arm them

selves . . .

for their defence, not for offence.

”

Adams would later write: “Every

measure of prudence

. . . ought to be assumed for the eventual total extirpation of

slavery from the United States.

. . . I have, through my whole life, held the prac

tice of slavery in

. . . abhorrence.”

Massachusetts court decisions from 1781 to 1783 declared slavery unconstitu-

tional

under Article I.

Chief Justice William Cushing of the Massachusetts

53. BOS. GAZETTE, Sept. 26, 1768, at 249.

54. B

OS. CHRONICLE, Sept. 19, 1768, at 363.

55.

— —

56.

ASS. CONST. OF 1780, pt. I, art. I.

57. Id. at Art. 17.

58. 3 T

HE ADAMS PAPERS: LEGAL PAPERS OF JOHN ADAMS 244–48 (L. H. Butterﬁeld et. al. eds.,

1965).

59. Letter to Robert J. Evans, June 8, 1819, in 10 T

HE WORKS OF JOHN ADAMS 379–80 (Charles

Francis Adams ed., Boston, Little, Brown and Co. 1856).

60. Z

ILVERSMIT, supra note 42, at 113–15.

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 587

Supreme Court declared that “slavery is . . . as effectively abolished as it can be

by the granting of rights and privileges wholly incompatible and repugnant to its

existence.”

Samuel Adams proposed in the Massachusetts ratiﬁcation convention in 1788

“that the said Constitution be never construed to authorize Congress, to infringe

the just liberty of the press,

. . . or to prevent the people of the United States, who

are peaceable citizens, from keeping their own arms.”

Massachusetts would rat-

ify

the Constitution without proposing a declaration of individual rights, but this

proposal exempliﬁed support by some for such a declaration. Adams’s proposal

would be seen as having been reﬂected in the Bill of Rights when it was pending

in Congress in 1789.

Some delegates to the Massachusetts convention dissented from ratiﬁcation of

the Constitution because it did not allow abolition of the slave trade until 1808.

Three of them, antifederalists, published a statement: “This practice of enslaving

mankind is in direct opposition to a fundamental maxim of truth, on which our

state constitution is founded, viz. ‘All men are born free and equal.’

. . . Indeed,

no man can justify himself in enslaving another.”

In sum, the Massachusetts Declaration of “natural, essential, and unalienable

rights,” including “the right of enjoying and defending their lives and liberties,”

entailed both the right to keep and bear arms and to freedom from slavery. The

suggestion that Massachusetts supported the right to bear arms to protect slavery

is an illusion.

C. Four Southern States Ratify the Constitution Without Demanding a Bill of

Rights

None of the ﬁrst four Southern states to ratify the Constitution—Delaware,

Georgia, Maryland, and South Carolina—proposed amendments guaranteeing

the right to bear arms or any other individual rights. Evidently these states had

no inkling, per the Bogus–Anderson theory, that something like the Second

Amendment was necessary to protect slavery.

The Constitution raised little controversy in Delaware, the ﬁrst state to ratify

it.

Georgia ratiﬁed shortly thereafter, although its convention had been delayed

because some members were “engaged in defending their families and property

on the frontiers”—a reference to hostilities with Indians.

61. Id. at 114.

62. 6 T

HE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1453 (John P.

Kaminski & Gaspare J. Saladino eds., 2000).

63. Independent Chronicle, Aug. 6, 1789, in id.

64. Consider Arms et al., Dissent to the Massachusetts Convention, April 1788, in 7 T

DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1440 (John P. Kaminski &

Gaspare J. Saladino eds., 2001).

65. 3 T

HE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 41 (Merrill Jensen

ed., 1976).

66. Id. at 223.

588 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

Luther Martin had been Maryland’s delegate to the federal convention that

drafted the Constitution in 1787, but opposed it, in part because the federal

gov-

ernment

would have power “to increase and keep up a standing army as numerous

as it would wish, and, by placing the militia under its power, enable it to leave the

militia totally unorganized, undisciplined, and even to disarm them.”

But the

Maryland convention ratiﬁed the Constitution without proposing any

amend-

ments

at all.

South Carolina was the next state to ratify the Constitution. Professors Bogus

and Anderson both depict the 1739 Stono River Rebellion in South Carolina, and

fear of a recurrence, as giving impetus a half century later for adoption of the

Second Amendment.

If that thesis is accurate, South Carolina would have been

the ﬁrst state to demand a bill of rights with an arms guarantee. Bogus even

sug-

gests

that “[t]he South’s fear that the North might destabilize the slave system . . .

gave anti-Federalists a powerful weapon.”

But Bogus has it upside down: It was the federalists controlling South

Carolina who opposed a bill of rights. Charles Cotesworth Pinckney, a

lead-

ing

federalist, explained that neither the 1776 South Carolina Constitution

nor the proposed federal Constitution had a bill of rights because only

express powers were delegated and all else was reserved. But it wasn’t just

that a bill of rights was unnecessary. He saw one as a threat to the

slavehold

er’s

power, expressing the following sinister reason: “Such bills generally

begin with declaring that all men are by nature born free. Now, we should

make that declaration with a very bad grace, when a large part of our

prop-

erty

consists in men who are actually born slaves.

”

Further, the antifederalists demanded a bill of rights that had nothing to do

with slavery. Alluding to the Revolution, Patrick Dollard stated about his

constituents:

In the late bloody contest, they bore a conspicuous part, when they fought,

bled, and conquered, in defence of their civil rights and privileges, which they

expected to transmit untainted to their posterity. They are nearly all, to a man,

opposed to this new Constitution, because, they say, they have omitted to

insert a bill of rights therein, ascertaining and fundamentally establishing, the

unalienable rights of men, without a full, free, and secure enjoyment of which

there can be no liberty . . . .

67. 1 DEBATES OF THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL

CONSTITUTION 372 (Jonathan Elliot ed., 1836).

68. Id. at 324.

69. Bogus, supra note 2, at 332–35; A

NDERSON, supra note 6, at 34.

70. Bogus, supra note 2, at 337.

71. 4 D

EBATES OF THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL

CONSTITUTION 316 (Jonathan Elliot ed., 1836).

72. Id. at 337.

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 589

The South Carolina federalists voted, by a two-thirds margin, to ratify the

Constitution without proposing amendments in the nature of a bill of rights.

But

South Carolinians who supported a bill of rights had allies in New Hampshire, a

state where slavery was unlawful. As the following describes, the New

Hampshire convention would ratify next, and it would be the ﬁrst to demand a

bill of rights—including a predecessor of the Second Amendment.

D. New Hampshire Recognizes Unalienable Rights, Which Its Courts Read to

Abolish Slavery,

and Demands that the Federal Constitution Prohibit

Disarming Citizens

New Hampshire adopted its ﬁrst constitution in 1784, the Bill of Rights of

which began:

I. All men are born equally free and independent; therefore, all government of

right originates from the people, is founded in consent, and instituted for the

general good.

II. All men have certain natural, essential, and inherent rights; among which

are—the enjoying and defending life and liberty—acquiring, possessing and

protecting property—and in a word, of seeking and obtaining happiness.

It further declared:

[W]henever the ends of government are perverted, and public liberty mani-

festly endangered, and all other means of redress are ineffectual, the people

may, and of right ought, to reform the old, or establish a new government. The

doctrine of non-resistance against arbitrary power, and oppression, is absurd,

slavish, and destructive of the good and happiness of mankind.

It also stated: “A well regulated militia is the proper, natural, and sure defence

of a state.”

New Hampshire’s courts and citizens read Sections I and II as abolishing slav-

ery.

For example, in 1788, Jeremy Belknap stated that “the negroes in

Massachusetts and New Hampshire are all free, by the ﬁrst article in the

Declaration of Rights. This has been pleaded in law, and admitted.”

At the New Hampshire ratiﬁcation convention in 1788, antifederalist leader

Joshua Atherton led the opposition to the federal Constitution:

“The strongest

and leading argument urged against it was derived from the fact that the

Constitution sanctioned or tolerated human slavery. Hon. Jos. Atherton, of

73. Id. at 340.

74. N.H. C

ONST. pt. I, arts. I, II (1783).

75. Id. at art. X.

76. Id. at art. XXIV.

77. Belknap to Ebenezer Hazard, Jan. 25, 1788, in Z

ILVERSMIT, supra note 42, at 117.

78. E.g., 28 T

HE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 314 (John P.

Kaminski et. al. eds., 2017).

590 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

Amherst, had used this argument in opposition to its adoption with much force

and effect.”

Atherton argued that, if the Constitution is ratiﬁed, “we become

Consenters to and Partakers in, the sin and guilt of this abominable trafﬁc,” add-

ing that “[t]he clause has not secured its [slavery’s] abolition.”

In another speech, Atherton argued that the proposed constitution was “a

system calculated to forge the chains of tyranny upon the citizens of the

United States.”

He cited “standing armies, . . . the insecurity of the liberty

of the press— . . . . bill of rights.”

New Hampshire’s delegates did recommend amendments, as part of a compro-

mise

that would result in the Constitution’s ratiﬁcation. A committee assembled

to propose amendments—the federalists led by convention president John

Sullivan and the antifederalists by Atherton

—agreed on twelve, including,

“Congress shall never disarm any citizen unless such as are or have been in actual

rebellion.”

Atherton then moved that the convention ratify the Constitution subject to the

condition that it be inoperable in New Hampshire without ratiﬁcation of

the amendments.

Instead, the federalist majority voted unconditionally to ratify

the Constitution and to recommend the amendments to Congress.

New Hampshire thus became the ﬁrst state to ratify the Constitution and to

propose amendments thereto, including that “Congress shall never disarm any

citizen”—the equivalent to what became the Second Amendment’s language that

the arms right “shall not be infringed.” And New Hampshire’s demand for

amendments may be attributed above all to Joshua Atherton, whose most

promi

nent

argument against the Constitution was that it sanctioned slavery.

In 1789, the federalists won the Congressional elections in New Hampshire, in

part by championing adoption of a federal bill of rights which had been

demanded by several states. Atherton wrote:

To carry on the farce the Federalists have taken the liberty to step onto the

ground of their opponents, and, clothing themselves with their armor, talk high

of amendments. . . . New York, Virginia, and other states having gone so fully

into the detail of amendments, the strokes of abler hands ha[ve] rendered the

lines of my feeble pen unnecessary.

79. George W. Nesmith to Joseph B. Walker, Aug. 25, 1888, in id. at 193.

80. Atherton Convention Speech, Feb. 18, 1788, in 28 T

HE DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION 208 (John P. Kaminski et. al. eds., 2017).

81. Atherton Convention Speech, June 19, 1788, in 28 T

HE DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION 370–71 (John P. Kaminski et. al. eds., 2017).

82. Id.

83. Id. at 372.

84. Id. at 373.

85. Id.

86. Id. at 375.

87. 1 T

HE DOCUMENTARY HISTORY OF THE FIRST FEDERAL ELECTIONS 839–40 (Merrill Jensen et. al.

eds., 2017).

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 591

By that point, Virginia and New York had demanded amendments, including

the wording “that the people have a right to keep and bear arms.”

Atherton thus

saw these proposals as equivalent to that offered by New Hampshire.

These

demands led to the proposal of what became the Second Amendment, which

New Hampshire would ratify with the rest of the federal Bill of Rights on January

25, 1790. And given the above background, it would be ludicrous to suggest that

New Hampshire ratiﬁed the Second Amendment to protect slavery.

New Hampshire was the ninth state to ratify the Constitution, which thereby

became effective. Given that slavery was unlawful there, it is obvious that the

state did not demand recognition of the right to bear arms to protect slavery. It

would be Virginia, according to the Bogus thesis, that dreamed up that idea.

III. T

HE DOMINOS BEGIN TO FALL

A. Virginia Tips the Scales in Favor of a Bill of Rights

The Supreme Court noted in McDonald v.

Chicago: “During the 1788 ratiﬁca-

tion

debates, the fear that the federal government would disarm the people in

order to impose rule through a standing army or select militia was pervasive in

antifederalist rhetoric.

”

That fear would become the impetus for adoption of the

Second Amendment.

Virginia’s convention to consider ratiﬁcation of the federal Constitution was

preceded by strong demands for a bill of rights. Thomas Jefferson wrote to James

Madison from Paris, approving of some parts of the Constitution but adding what

he disliked: “First the omission of a bill of rights providing clearly & without the

aid of sophisms for freedom of religion, freedom of the press, protection against

standing armies[.]”

Alexander White expressed the federalist position that a bill

of rights was unnecessary: “There are other things so clearly out of the power of

Congress, that the bare recital of them is sufcient, I mean the ‘rights of

con-

science,

or religious liberty—the rights of bearing arms for defence, or for killing

game.’”

When the convention began, Patrick Henry wrote to an antifederalist leader in

New York that George Mason had drafted proposed amendments to the

Constitution. It was divided into two parts. The ﬁrst was “a Declaration or Bill of

Rights, asserting and securing from Encroachment, the Essential and unalienable

Rights of the People.”

The amendments included protections for assembly and

speech, and declared “That the People have a Right to keep and to bear Arms;

88. See ELLIOT, infra note 52, at 328, 659 & accompanying text.

89. H

ALBROOK, supra note 7 & accompanying text.

90. McDonald v. City of Chicago, 561 U.S. 742, 768 (2010) (citing H

ALBROOK, supra note 7, at 171–

278 (2008)).

91. Jefferson to Madison, Dec. 20, 1787, in 8 T

HE DOCUMENTARY HISTORY OF THE RATIFICATION OF

THE CONSTITUTION 250–51 (John P. Kaminski et. al. eds., 1988).

92. Winchester Virginia Gazette, Feb. 22, 1788, in id. at 404.

93. Id. at 819. Mason to Lamb, June 9, 1787, in 9 T

HE DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION 819 (John P. Kaminski et. al. eds., 1988).

592 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

that a well regulated Militia, composed of the Body of the People, trained to

arms, is the proper, natural, and safe Defence of a free State.”

The second part

included structural amendments, such as that two-thirds of Congress was neces

sary to keep up a standing army.

It did not include a clause in support of state

militia powers, but that would be added at the end of the convention.

Early in the convention debates, Patrick Henry raised the alarm that the power

of Congress

to arm and to call out the militia was exclusive of state power.

If they neglect or refuse to discipline or arm our militia, they will be useless:

the states can do neither—this power being exclusively given to Congress. The

power of appointing ofﬁcers over men not disciplined or armed is ridiculous;

so that this pretended little remains of power left to the states may, at the pleas

ure of Congress, be rendered nugatory.

This is where Professor Bogus begins his Hidden History of the Second

Amendment, asking: “What was Henry driving at? In 1788, Americans did not

fear foreign invasion

. . . . The militia were the last and best defense against slave

insurrection but practically useless against a professional army.”

Not a single

delegate in the convention said any such thing. Bogus goes on to read Henry’s

mind by speculating: “Without spelling it out in so many words, Henry was

rais

ing

the specter of the federal government using Article I, Section 8 powers to sub-

vert

the slave system indirectly.”

But Henry was concerned largely with an overly powerful federal government.

“Congress by the power of taxation, by that of raising an army, and by their

con

trol

over the militia, have the sword in one hand, and the purse in the other.”

Bogus next ﬁnds George Mason arguing:

It is extremely unsafe, without some alterations. It would be to use the militia

to a very bad purpose, if any disturbance happened in New Hampshire, to call

them from Georgia. . . . I wish such an amendment as this—that the militia of

any state should not be marched beyond the limits of the adjoining state; and if

it be necessary to draw them from one end of the continent to the other, I wish

such a check, as the consent of the state legislature, to be provided.

100

Bogus spins Mason’s concern about the power of Congress to march a militia

from one state to another as follows: “The consequence of such an act was

obvious to everyone in the audience: the state would be unprotected against its

94. Id. at 821.

95. Id. at 823.

96. 3 D

EBATES OF THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL

CONSTITUTION 52 (Jonathan Elliot ed., 1836).

97. Bogus, supra note 2, at 345–46.

98. Id. at 346.

99. Elliot, supra note 96, at 169.

100. Elliot, supra note 96, at 378–79.

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 593

slaves.”

101

The consequence must have been so “obvious” that no one even hinted

at it. Anderson adds: “It was the militia, he [Mason] reminded his colleagues, that

kept the state safe from the enslaved during the Revolutionary War.”

102

For that

she cites a secondary source,

103

which in turn did not pretend to quote Mason.

Mason made no such statement. Indeed, under Mason’s proposal, if a slave revolt

occurred in one state, the militia of another state could not be required to come to

its aid.

Moreover, Mason’s concern was also expressed in states that had abolished

slavery. For instance, Rhode Island abolished slavery in 1784. When it ratiﬁed

the Constitution, Rhode Island proposed amendments including “that the people

have a right to keep and bear arms,” but added that until the amendments were

agreed to, “the militia of this state will not be continued in service out of this

State for a longer term than six weeks, without the consent of the legislature

thereof.”

104

Rhode Island further called for the abolition of slavery.

105

So, opposition to a power of Congress to send a state’s militia to another state

was not focused on a desire to protect slavery. The militia was all the states had to

defend themselves from invasion by foreign powers like the British or the

French, from attacks by hostile Indians, and from insurrection—which could be

instigated by slaves in the Southern states but could also be sparked by other

interests, such as Shay’s Rebellion in 1786.

George Mason further argued: “The militia may be here destroyed by that

method which has been practised in other parts of the world before; that is, by

rendering them useless—by disarming them. Under various pretences, Congress

may neglect to provide for arming and disciplining the militia; and the state gov

ernments

cannot do it, for Congress has an exclusive right to arm them, &c.”

106

Sounding like something a Tory might have said, Bogus refers to the Whig ori-

gins

of “bombast equating standing armies with tyranny,” adding: “Mason’s

main concern was not the creation of a standing army but the preservation of the

militia. Mason personally owned three hundred slaves.”

107

Aside from there being

no connection between those two sentences, Mason’s purpose in urging a general

militia was to avoid a standing army. Bogus did not see ﬁt to include Mason’s

comment before the above quotation, which stated: “I abominate and detest the

idea of a government, where there is a standing army.”

108

101. Bogus, supra note 2, at 347.

102. A

NDERSON, supra note 6, at 29.

103. M

ICHAEL WALDMAN, THE SECOND AMENDMENT 38, 200 (2014). Waldman uses no footnotes

and fails to provide sources for most of his allegations, instead identifying only limited sources by

reference to page numbers of the text.

104. 26 D

OCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 999 (J. Kaminski et al.

eds., 2013).

105. Id. at 1002.

106. Elliot, supra note 96, at 379.

107. Bogus, supra note 2, at 349.

108. Elliot, supra note 96, at 379.

594 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

More important for understanding the reason for recognition of the right to

bear arms, Bogus ignores Mason’s following explanation on the very next page:

Forty years ago, when the resolution of enslaving America was formed in

Great Britain, the British Parliament was advised by an artful man [Sir

William Keith], who was governor of Pennsylvania, to disarm the people; that

it was the best and most effectual way to enslave them; but that they should

not do it openly, but weaken them, and let them sink gradually, by totally dis-

using and neglecting the militia. [Here Mr. Mason quoted sundry passages to

this effect.]

109

Colonial Pennsylvania Governor Keith had advocated regular troops over mili-

tia

“in Case of a War, or Rebellion,” noting in part that “it may be question’d how

far it would be consistent with good Policy, to accustom all the able Men in the

Colonies to be well exercised in Arms.”

110

He also held that every act of a colo-

nial

government must primarily beneﬁt the mother state

111

and that colonies

should not “claim an absolute legislative Power.”

112

An armed populace would

potentially create rebellion against colonial exploitation.

Mason, as quoted above, thus saw the militia as a popular force to maintain a

free society, whereas a tyrannical government would “disarm the people,” which

“was the best and most effectual way to enslave them.” Nowhere did he hint that

the militia’s purpose was to maintain slavery.

Patrick Henry noted that, under Article I, Section 10 of the Constitution, no

state may, without the consent of Congress, “engage in War, unless actually

invaded,” adding: “If the country be invaded, a state may go to war, but cannot

suppress insurrections. If there should happen an insurrection of slaves, the

coun

try

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.”

113

Bogus comments: “If members of the audience were previously uncertain

about the meaning of Mason and Henry’s warning, this had made it plain.

Congress might want to leave the South defenseless against its slaves.”

114

Henry

(not Mason) did indeed suggest in the above passage that an exclusive power of

Congress to call out the militia negated a state power to suppress insurrection,

including a slave insurrection. But whether Congress had an exclusive power, or

a concurrent power with the states, to summon the militia simply had no relation

to what became the Second Amendment.

115

109. Id. at 380 (ﬁrst bracketed item added, second bracketed item in original).

110. S

IR WILLIAM KEITH, A COLLECTION OF PAPERS AND OTHER TRACTS 180 (2d ed. 1740).

111. See id. at 170.

112. Id. at 175.

113. Elliot, supra note 96, at 423 (emphasis omitted).

114. Bogus, supra note 2, at 350.

115. The militia issue would be played out regarding a proposed structural amendment to the

Constitution, explained below, that would not be adopted.

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 595

Bogus then asserts: “The Federalists did their best to respond to the suggestions

that the federal government would, in one way or another, render the militia

impotent as a slave control device.”

116

In support, he quotes Wilson Nicholas, a

federalist, who said that the Southern states may be more likely to need the aid of

militia “from their situation,” but he did not explain further and said nothing

about slavery.

117

Anderson then transforms Bogus’s unfounded assertion into the

broader (and still unfounded) claim that Mason and Henry both made the alleged

assertion about “a slave control device.”

118

Professor Paul Finkelman relates, “The slave patrols were emphatically not the

militia.” Bogus makes the fundamental error of equating the two. Finkelman

adds: “Even if the [second] 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.”

119

Paul Finkelman, 2nd Amendment

Passed to

Protect Slavery? No!, T

HE ROOT (Jan. 21, 2013, 12:25

AM), https://www.theroot.com/2nd-amendment-passed-to-protect-slavery-no-1790894965 [https://perma.cc/

PQ4U-U9H4].

After having repeated some of Bogus’s claims about the militia, without any

reference to the right of the people to bear arms, Anderson leaps to the

conclu

sion:

“The Second Amendment was, thus, not some hallowed ground but rather a

bribe, paid again with Black bodies.”

120

That is an extreme statement given the

superﬁcial arguments to support it. The Amendment gave no additional powers

of the militia to the states, only substantively guaranteeing a right to the people.

Madison argued that the states had a concurrent power to arm and to call out

the militia.

121

What harm could there be in Madison’s mind—Bogus suggests—

in explicitly recognizing that? “Two years later Madison would write the Second

Amendment, which has essentially the same effect as the provision that Henry

claimed to be advocating.”

122

Not so. The power of states to arm the militia would

be considered entirely separate from the right of the people to bear arms.

That became obvious when the Virginia convention voted to adopt the

Constitution and to recommend amendments, which were divided into two sepa-

rate parts. First, a bill of rights declared “the essential and unalienable rights of

the people,”

123

including: “That the people have a right to keep and bear arms;

that a well-regulated militia, composed of the body of the people trained to arms,

is the proper, natural, and safe defence of a free state.”

124

Second, entirely separate structural changes were proposed that clariﬁed or

modiﬁed the federal-state balance. Included in these amendments was the

116. Bogus, supra note 2, at 350.

117. Elliot, supra note 96, at 390.

118. A

NDERSON, supra note 6, at 32.

119.

120. A

NDERSON, supra note 6, at 32.

121. See Elliot, supra note 96, at 382.

122. Bogus, supra note 2, at 352.

123. Elliot, supra note 96, at 657.

124. Id. at 659.

596 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

following: “That each state respectively shall have the power to provide for

organizing, arming, and disciplining its own militia, whensoever Congress shall

omit or neglect to provide for the same.”

125

This concerned a state power, not a

right of the people, and it would be rejected by the ﬁrst federal Congress.

Try as he might to blend them, Bogus is unable to distinguish the two

pro

posals.

While the Second Amendment declares that a well-regulated militia is

necessary to a free state’s security, it is silent on a state power to arm the militia.

Bogus suggests that “

the phrase ‘to bear arms’ was a term of art that meant

partic-

ipating

in military affairs, not merely carrying weapons. As Garry Wills put it:

‘(O)ne does not bear arms against a rabbit.’

”

126

But the Second Amendment says

nothing about bearing arms “against” anything. As the Dissent of Minority

illus-

trated,

the term “bear arms” was not limited to military affairs: “That the people

have a right to bear arms for the defense of themselves and their own state, or the

United States, or for the purpose of killing game.”

127

The Virginia Declaration of Rights of 1776 included a well-regulated militia

clause but did not explicitly state that the people have a right to bear arms. Bogus

asks: “Why did Mason and the Richmond delegates attach greater signiﬁcance to

a right to bear arms in 1788 than in 1776? Mason and Henry had raised the

spec

ter

of the national government undermining the slave system by disarming the

state militia.

”

128

Mason made no such statement, and Henry had only referred to

whether the states could call out the militia to suppress an insurrection, only on a

single occasion referring to a slave insurrection. Again, the state militia power

was a separate issue from “the right of the people” to bear arms.

Bogus concedes that the right to bear arms hardly originated in the Virginia

convention. After all, it was in the English Declaration of Rights of 1689 and in

four state constitutions adopted beginning in 1776. He claims: “But it was at

Richmond that concerns about slave control and federal authority over the militia

were united, producing a new rationale for a right to bear arms.”

129

Henry’s

remark about the use of the militia to suppress a slave insurrection was the only

sentence on the subject in the 663 pages of debates in the Virginia convention

published in Elliot’s Debates. More importantly, Bogus cannot distinguish a state

power apart from a right of the people.

Professor Paul Finkelman, who has written extensively on slavery and the

Constitution, wrote that it “is not even remotely true” that “the Second

Amendment was adopted (or at least written) to get Virginia’s ‘vote’ for

ratiﬁca

tion

of the Constitution, which took place in July 1788. . . . In 1788 the Second

Amendment was not yet written and was not part of the debate over ratiﬁcation of

the Constitution.” The proposed amendments could not have been “a quid pro

125. Id. at 660.

126. Bogus, supra note 2, at 357.

127. 2 D

OCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 623–24 (J. Kaminiski

et al. eds., 2009).

128. Bogus, supra note 2, at 356–57.

129. Id. at 358.

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 597

quo for ratiﬁcation, since none of those advocating amendments, like Henry,

voted for ratiﬁcation.”

130

Virginia had taken the decisive step—this large and inﬂuential state ratiﬁed the

Constitution but was committed to use her great inﬂuence to demand a bill of

rights. The remaining states, both large (New York and North Carolina) and small

(Rhode Island and the future state of Vermont), would ratify the Constitution

fol

lowing

Virginia in insisting that individual rights be declared. They did so with-

out

any hint of an alleged secret plot to adopt the Second Amendment to protect

slavery.

B. New York Ratiﬁes the Constitution and Demands a Bill of Rights

The groundswell for a bill of rights, including the right to keep and bear arms,

became overwhelming

with Virginia’s ratiﬁcation of the Constitution. The

mainder

of the states would hammer nails in the cofﬁn. New York, another inﬂu-

ential

and populous state, would ratify and demand a declaration of rights a

month after Virginia. North Carolina delayed ratiﬁcation of the Constitution until

after the ﬁrst federal Congress met and proposed the Bill of Rights. Rhode Island

and Vermont would not ratify the Constitution until it appeared that the

ratiﬁca

tion

of the Bill of Rights by the states was a foregone conclusion.

The New York convention was preceded by serious antifederalist agitation.

“Brutus” (thought to be Robert Yates) wrote: “In the bills of rights of the states it

is declared, that a well regulated militia is the proper and natural defence of a free

government.”

131

“Common Sense” warned that “a citizen may be deprived of the

privilege of keeping arms for his own defence.”

132

Antifederalist John De Witt

foretold that Congress “at their pleasure may arm or disarm all or any part of the

freeman of the United States.”

133

In the ratifying convention, Chancellor Robert R. Livingston gave a glowing

speech with varied arguments for the Constitution, just brushing over “the

neces-

sity

of adding to the powers of Congress, that of regulating the militia.”

134

That

was one of only a few references to the militia in the recorded debates.

Leading the antifederalists was John Lansing, Jr., who declared “the almost

unanimous opinion” of his constituents in support of amendments which “will

have a tendency to lessen the danger of invasion of civil liberty by the general

government.”

135

Of a free press, trial by jury, and religious liberties, Thomas

Tredwell wished that “these and other invaluable rights of freemen had been as

130. Finkelman, supra note 119.

131. Brutus II, N.Y. J., Nov. 1, 1787, reprinted in 19 D

OCUMENTARY HISTORY OF THE RATIFICATION

OF THE

CONSTITUTION 157 (J. Kaminski et al. eds. 2003).

132. From the Wilmington Centinel, To the People of North Carolina, N.Y. J. & P

ATRIOTIC REG.,

April 21, 1788, at 2, col. 3.

133. T

HE ANTIFEDERALIST PAPERS 75 (Morton Borden ed. 1965).

134. 2 D

EBATES OF THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL

CONSTITUTION 214 (Jonathan Elliot ed., 1836).

135. Id. at 220.

598 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

cautiously secured as some of the paltry local interests of some of the individual

states.”

136

The latter included the importation of slaves until 1808, which was “re-

pugnant to every principle of humanity.”

137

In addition to proposing that a two-thirds vote of Congress be required for a

standing army, Lansing offered the following structural amendment:

That the militia of any state shall not be marched out of such state without the

consent of the executive thereof, nor be continued in service out of the state,

without the consent of the legislature thereof, for a longer term than six weeks;

and provided, that the power to organize, arm, and discipline the militia, shall

not be construed to extend further than to prescribe the mode of arming and

disciplining the same.

138

In ratifying the Constitution, the New York convention proposed a bill of

rights, including: “That the people have a right to keep and bear arms; that a well

regulated militia, including the body of the people capable of bearing arms, is the

proper, natural, and safe defence of a free state.”

139

No one hinted that its purpose

was to protect slavery.

The convention also adopted a separate resolution urging their representatives

in Congress to approve a list of amendments concerning the structure of the

fed

eral

government and the federal-state relation, including: “That the militia of any

state shall not be compelled to serve without the limits of the state, for a longer

term than six weeks, without the consent of the legislature thereof.”

140

Again, this

concern had nothing to do with slavery.

A proposal to abolish slavery in New York’s 1777 constitutional convention

did not succeed. The state later took various measures to end slavery and ﬁnally

enacted abolition in 1799.

141

While slavery was still legal, albeit in decline, when

New York ratiﬁed the Constitution, no evidence exists that it acceded to a

demand for recognition of the right to bear arms as some kind of blackmail

demanded by Virginia.

IV. T

HE SECOND AMENDMENT IN CONGRESS: FROM MADISON’S PROPOSAL TO

ADOPTION

142

The plot thickens as Bogus suggests that Madison would not have included the

right to bear arms in his proposed bill of rights were it not for the Virginia

con-

vention

demanding one for secret, nefarious reasons:

136. Id. at 399.

137. Id. at 402.

138. Id. at 406.

139. Elliot, supra note 67, at 328.

140. Elliot, supra note 134, at 331.

141. See Z

ILVERSMIT, supra note 42, at 139–40, 147–50, 181–82.

142. What became the Second Amendment was originally proposed to the states as the Fourth

Amendment but is referred to here as the Second for simplicity.

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 599

But for the events at Richmond, it is doubtful that Madison would have

included a right to bear arms in his proposed list of rights. Only four of the thir-

teen state constitutions—Massachusetts, North Carolina, Pennsylvania, and

Vermont—contained a right to bear arms provision . . . . Thus, over two-thirds

of the state constitutions did not contain a right to bear arms.

143

But there were only eight states with a declaration of rights, meaning that half

of them recognized the right to bear arms. By contrast, only two of those states

recognized a right of the people to freedom of speech.

144

By Bogus’s logic, one

could belittle even more the right to free speech.

For his “invented in Richmond” theory, Bogus ignores the strong sentiment

in support of the right to bear arms as expressed in Samuel Adams’s proposal

in the Massachusetts convention, the Pennsylvania Dissent of Minority, and in

antifederalist opinion generally. New Hampshire’s proposed amendment, that

“Congress shall never disarm any Citizen,” does not count, according to Bogus, as

it “was the only state to suggest a right to bear arms that was not connected to the

militia.”

145

But neither were the proposals of Adams, the Dissent, and others, and

those of Virginia and the states that followed did not limit bearing arms to the

militia.

On June 8, 1789, Madison introduced his proposed amendments in the House

of Representatives, including the following: “The right of the people to keep and

bear arms shall not be infringed; a well armed, and well regulated militia being

the best security of a free country: but no person religiously scrupulous of bearing

arms shall be compelled to render military service in person.”

146

He did not intro-

duce

the structural amendments sought by Virginia, such as the power of states to

maintain militia. As Senator William Grayson of Virginia informed Patrick

Henry, the amendments “

altogether respected personal liberty.”

147

And Joseph

Jones wrote to Madison that “they are calculated to secure the personal rights of

the people.”

148

Bogus claims: “We do not know why Madison chose to draft his provision pre-

cisely

this way. He did not explain his thinking in any speech or letter that has

come to light.

”

149

To the contrary, he prepared notes for his speech introducing

the amendments in which he noted the objection to the Constitution of “omission

of guards in favor of rights & liberties,” which was the “most urged & easiest

143. Bogus, supra note 2, at 364–65.

144. See P

A. CONST., ch. I, art. XII (1776); VT. CONST., ch I, art. XIV (1777) (recognizing free

speech). Three recognized free speech only in the legislature. See M

D. CONST., Declaration of Rights,

art. VIII (1776); M

ASS. CONST., pt. I, art. XXI; N.H. CONST., pt. I, art. XXX. Three did not recognize

free speech at all. See N.C. C

ONST. (1776); VA. CONST. (1776); DEL. CONST. (1776).

145. Bogus, supra note 2, at 365.

146. 4 D

OCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS 9–10 (C.B. Bickford ed., 1986).

147. C

REATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL

CONGRESS 249 (Helen E. Veit, Kenneth R. Bowling & Charlene B. Bickford eds., 1991).

148. Id. at 253.

149. Bogus, supra note 2, at 366.

600 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

obviated.” He continued: “Read the amendments—They relate 1st to private

rights.”

150

Madison observed a “fallacy on both sides—espec[iall]y as to English

Decl[aratio]n. of Rights—1. mere act of parl[iamen]t. 2. no freedom of press—

Conscience . . . attainders—arms to protest[an]ts.”

151

The Second Amendment

was an improvement over the English Declaration of Rights of 1689 because it

constitutionalized the right, thus prohibiting infringement by the legislature, and

extended the right to the people at large rather than only to Protestants.

Madison further expressed his thinking in reaction to the publication of Tench

Coxe’s Remarks on

the First Part of the Amendments to the Federal Constitution,

in the Philadelphia Federal Gazette ten days after Madison introduced his

amend

ments.

Under the pen name “A Pennsylvanian,” Coxe wrote: “As civil rulers, not

having their duty to the people duly before them, may attempt to tyrannize, and

as the military forces which must be occasionally raised to defend our country,

might pervert their power to the injury of their fellow-citizens, the people are

con

ﬁrmed

by the next article in their right to keep and bear their private arms.”

152

Who was Tench Coxe? Among other roles, in 1787 he was named secretary of

the Pennsylvania Society for Promoting the Abolition of Slavery, of which

Benjamin Franklin was president. Heir to America’s ﬁrst abolition society, he

promoted action to abolish slavery and provided legal aid to free Blacks. “The

bulk of the society’s paper work was handled by Coxe, who more than any other

individual deserved credit for the accomplishments of the group.”

153

Coxe sent a copy of his above “Remarks” to Madison with a letter noting that

the article “may perhaps be of use in the present turn of the public opinions in

New York state that they should be republished there.”

154

Madison replied, noting

that the article was already printed “in the Gazettes here [New York].”

155

added that ratiﬁcation of the amendments “will however be greatly favored by

ex-

planatory

strictures of a healing tendency, and is therefore already indebted to the

co-operation of your pen.”

156

Coxe’s defense of the amendments was also prominently reprinted on the front

page of the special July 4, 1789, issue of the Boston Massachusetts Centinel.

157

search of the literature reveals that no writer disputed Coxe’s analysis that what

became the Second Amendment protected the right of the people to keep and

bear “their private arms” in order to prevent tyranny.

150. James Madison, Notes for Speech in Congress (June 8, 1789), in 12 THE PAPERS OF JAMES

MADISON 193 (Charles F. Hobson et al. eds., 1979).

151. Id. at 193–94.

152. Federal Gazette, June 18, 1789, at 2, col. 1.

153. J

ACOB E. COOKE, TENCH COXE AND THE EARLY REPUBLIC 92–93 (1978).

154. From Tench Coxe, June 18, 1789, in 12 T

HE PAPERS OF JAMES MADISON 239–40 (Charles F.

Hobson et al. eds., 1979).

155. From James Madison to Tench Coxe, June 24, 1789, in 12 T

HE PAPERS OF JAMES MADISON 257

(Charles F. Hobson et al. eds., 1979); see also N.Y. P

ACKET, June 23, 1789, at 2, col. 1–2.

156. Madison to Coxe, June 24, 1789, 12 T

HE PAPERS OF JAMES MADISON 257 (Charles F. Hobson et

al. eds., 1979).

157. M

ASS. CENTINEL (Boston), July 4, 1789, at 1, col. 2.

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 601

Bogus is silent about Coxe’s article and Madison’s endorsement of it. Perhaps

he would explain that the abolitionist Coxe was in cahoots with Madison’s secret

plot to get the Second Amendment adopted in order not to prevent tyranny, but to

protect slavery.

Bogus next turns innocuous editing into further evidence of Madison’s

imagi

nary

scam to introduce secret meanings to the Second Amendment. Instead of

being “

the proper, natural and safe defence of a free State,” as proposed by some

states, Madison’s draft called the militia “the best security of a free country.”

158

According to Bogus, “no one who understood the recent history of the

Revolutionary War considered the militia the best defense against foreign

inva-

sion.

As a Virginian, Madison knew that the militia’s prime function in his state,

and throughout the South, was slave control.

”

159

While there were times when the militia underperformed, it also won victories

against the Redcoats. The battles of Bennington, Vermont in 1777;

160

See The Battle of Bennington

, R

EVOLUTIONARYWAR.US, https://revolutionarywar.us/year-1777/

battle-of-bennington/ [https://perma.cc/N2LF-9HXY].

King’s

Mountain, North Carolina in 1780;

161

and Cowpens, South Carolina in 1781

(which involved both Continentals and militia),

162

See American Units at Cowpens

, B

ATTLE OF COWPENS, http://www.battleofcowpens.com/

american-units-at-cowpens/ [https://perma.cc/8FHV-UPBZ].

proved the worth of the militia

in the Revolution. No basis exists for Bogus’s attribution to Madison of changing

“defence” to “security” because the militia was worthless against foreign

inva-

sion

and was good for nothing but slave control. Bogus further ignores the com-

mon

belief by federalists and antifederalists that a general militia would act as a

deterrent to domestic tyranny.

In support of his theory that the militia was worthless, Bogus relies on the

faked research of Michael Bellesiles, who claimed to have found that “

most

mili-

tiamen

were not even good shots,” that it was a myth that they were “proﬁcient

with muskets to protect themselves from rufﬁans and Indians or to hunt to put

food on the table,” and that “few Americans owned guns.”

163

Bellesiles’s

“research” would be revealed as falsiﬁed, creating a scandal that led to the with-

drawal of his prestigious book award.

164

See S

TANLEY N. KATZ ET AL., REPORT OF THE INVESTIGATIVE COMMITTEE IN THE MATTER

OF PROFESSOR MICHAEL BELLESILES (July 10, 2002), https://www.emory.edu/news/Releases/

Final_Report.pdf [https://perma.cc/H2HV-NHMP]; Columbia University Board of Trustees,

Announcement of Columbia University Board

of Trustees, H

ISTORY NEWS NETWORK, http://hnn.

us/articles/1157.html [https://perma.cc/5XKF-JMGB].

158. 4 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 9–10 (J. Kaminiski et

al. eds., 1997).

159. Bogus, supra note 2, at 368.

160.

161. 2 D

AVID RAMSAY, THE HISTORY OF THE AMERICAN REVOLUTION 499–501 (Lester Cohen ed.,

1990).

162.

163. Bogus, supra note

at 341–42

(citing Michael A. Bellesiles, The Origins of Gun Culture in the

United States, 1760-1865, 83 J. A

M. HISTORY 425, 440–41, 426–27 (1996)). This article morphed into

Bellesiles’s book Arming America: The Origins of a National Gun Culture (2000).

164.

602 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

As to the Amendment’s substantive guarantee of “the right of the people,”

Bogus limits that right to “keeping and bearing arms in the militia,” which is “the

collective rights position.”

165

But the only constituent letter to a congressman

about the meaning of the proposed Second Amendment did not see it that way.

Antifederalist Samuel Nasson, as a delegate to the Massachusetts ratifying

con-

vention

in 1787, had demanded a bill of rights

166

and denounced the slave

trade.

167

Now in 1789, he wrote to Rep. George Thatcher of Massachusetts:

A Bill of Rights well secured that we the people may know how far we may

Proceed in Every Department. Then there will be no Dispute Between the peo-

ple and rulers in that may be secured the right to keep arms for Common and

Extraordinary Occasions such as to secure ourselves against the wild Beast

and also to amuse us by fowling and for our Defence against a Common

Enemy. You know to learn the Use of arms is all that can Save us from a for-

eign foe that may attempt to subdue us, for if we keep up the Use of arms and

become well acquainted with them, we Shall always be able to look them in

the face that arise up against us.

168

Madison’s amendments were referred to a House select committee. Roger

Sherman of Connecticut, a member, proposed the following state militia power,

similar to that of the Virginia and Harrisburg conventions:

The militia shall be under the government of the laws of the respective states,

when not in the actual service of the United States but such rules as may be

prescribed by Congress for their uniform organization and discipline shall be

observed in ofﬁcering and training them.

169

The committee disregarded Sherman’s proposal and reported back an amended

version of that of Madison: “A well regulated militia, composed of the body of

the people, being the best security of a free state, the right of the people to keep

and bear arms shall not be infringed; but no person religiously scrupulous shall be

compelled to bear arms.”

170

Representative William L. Smith of South Carolina wrote to fellow federalist

Edward Rutledge in support of three of the proposed amendments, namely: that

an exception to a power of Congress does not imply powers not expressly

165. Bogus, supra note 2, at 408.

166. 5 D

OCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1397 (J. Kaminski et al.

eds., 1998).

167. 6 D

OCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1358 (J. Kaminski et al.

eds., 2000).

168. C

REATING THE BILL OF RIGHTS, supra note 147, at 260–61 (cleaned up).

169. James C. Hutson, The Bill of Rights: The Roger Sherman Draft, 18 T

HIS CONSTITUTION 36

(1988).

170. 4 D

OCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF

AMERICA 28 (J. Kaminiski et al. eds., 1997).

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 603

delegated; the enumeration of rights does not deny other rights; and the powers

not delegated are reserved to the states. Smith continued that “if these amendts.

are adopted, they will go a great way in preventing Congress from interfering

with our negroes after 20 years.”

171

Bogus cites this comment but fails to note

that Smith was referring only to those three aforementioned amendments and not

to the Second Amendment.

172

During House debate, no one found fault with the right to bear arms clause and

the discussion centered on the exemption from the militia of conscientious

objec-

tors.

Elbridge Gerry stated:

This declaration of rights, I take it, is intended to secure the people against the

mal-administration of the government . . . . Now, I am apprehensive, sir, that

this clause would give an opportunity to the people in power to destroy the

constitution itself. They can declare who are those religiously scrupulous, and

prevent them from bearing arms.

What, sir, is the use of a militia? It is to prevent the establishment of a standing

army, the bane of liberty.

173

A motion to strike out the entire clause about the religiously scrupulous

failed,

174

although later it was amended by adding “in person” at the end.

175

Representative Frederick A. Muhlenberg of Pennsylvania, the Speaker of the

House, wrote to Benjamin Rush that “it takes in the principal Amendments which

our Minority had so much at Heart,”

176

—referring to the Dissent of Minority,

which included that “the people have a right to bear arms for the defense of

them-

selves

and their own state, or the United States.”

177

The Senate rejected a proposal to add “for the common defence” after “bear

arms” in the Second Amendment.

178

And it whittled down the Amendment to

state what would be adopted: “A well regulated militia being necessary to the

se-

curity

of a free state, the right of the people to keep and bear arms, shall not be

infringed.”

179

The Senate rejected an explicit reservation of state power to maintain militias

proposed by the Virginia and Harrisburg conventions: “That each state,

respec-

tively,

shall have the power to provide for organizing, arming, and disciplining its

171. Letter from William L. Smith to Edward Rutledge, Aug. 10, 1789, in CREATING THE BILL OF

RIGHTS, supra note 147, at 273 (emphasis added).

172. Bogus, supra note 2, at 328.

173. 11 D

OCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF

AMERICA 1285–86 (C. B. Bickford et al. eds., 1992).

174. See id. at 1287.

175. Id. at 1309.

176. Muhlenberg to Rush, Aug. 18, 1789, in C

REATING THE BILL OF RIGHTS, supra note 147, at 280.

177. 2 D

OCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 623–24 (Merrill Jensen

ed., 1976).

178. J

OURNAL OF THE FIRST SESSION OF THE SENATE OF THE UNITED STATES OF AMERICA 129 (New

York, Thomas Greenleaf 1789).

179. Id. at 163.

604 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

own militia, whensoever Congress shall omit or neglect to provide for the

same.”

180

The ﬁnal text of the Second Amendment eschews the theory that its purpose

was to protect slavery. Most importantly, it guarantees rights to “the people,” in

the same way that the First Amendment protects the right of “the people” to

peti

tion

and the Fourth Amendment protects the right of “the people” against unrea-

sonable

searches and seizures. Further, the militia clause is a declaration of

political philosophy that has no effect on the power of states to maintain militias.

Despite none of the debates or proceedings in Congress hinting at any such

thing, Bogus asserts: “

Madison’s colleagues in the House and Senate almost

cer-

tainly

considered the Second Amendment to be part of the slavery compromise. . . .

In effect, Madison proposed that the slavery compromise be supplemented by

another constitutional provision prohibiting Congress from emasculating the

South’s primary instrument of slave control, and Congress acceded to that

request.”

181

However, as just discussed, Madison never proposed, and the

Senate rejected, the amendment that each state “shall have the power to

pro

vide

for organizing, arming, and disciplining its own militia” if Congress failed

to so provide.

182

Given the void, Bogus is forced to concede: “The evidence that the Second

Amendment was written to assure the South that the federal government would

not disarm its militia

. . . is almost entirely circumstantial. Madison never

expressly stated that he wrote the Second Amendment for that purpose. If the

the

sis

is sound, why is no direct evidence to be found supporting it?”

183

Bogus further suggests several reasons why no evidence supports his thesis.

“The history of the Second Amendment was hidden by design,” “the available

records are woefully incomplete,” “the slave comprise and slave control were

sensitive topics,” and “to the extent that express statements about slave control

were made at ratifying conventions in the South or later in the First Congress,

stenographers may have considered it both politic and convenient to abbreviate

or omit those remarks.”

184

Evidently, the adoption of the Second Amendment to

protect slavery was such a closely guarded secret that no one knew until

Professor Bogus discovered this “Hidden History” in 1998.

V. H

OLDOUTS FOR THE BILL OF RIGHTS

A. North Carolina Waits to Ratify the Constitution Until the Bill of

Rights Is Proposed

North Carolina delayed ratiﬁcation of the Constitution until after the ﬁrst

fed

eral

Congress met and the Bill of Rights was proposed. Sentiment was strong in

180. Id. at 126.

181. Bogus, supra note 2, at 371.

182. See supra note 180 & accompanying text.

183. Bogus, supra note 2, at 372.

184. Id. at 372–75.

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 605

favor of the individual right to bear arms. Before the ratifying convention met,

one “Common Sense” warned that under the proposed Constitution, “a citizen

may be deprived of the privilege of keeping arms for his own defence.”

185

The

guarantee of the North Carolina Constitution that “the People have a right to bear

Arms for the Defense of the State”

186

was understood as protecting the right of “a

citizen” —a person, not a collective—“of keeping arms for his own defence.”

The antifederalists were the majority during the North Carolina ratiﬁcation

convention, and they left nothing to chance. The convention refused to ratify the

Constitution until after Congress proposed the Bill of Rights. During the process,

there was extensive debate on the need for a declaration of rights. William Lenoir

warned that Congress “can disarm the militia. If they were armed, they would be

a resource against great oppressions

. . . . If the laws of the Union were oppressive,

they could not carry them into effect, if the people were possessed of proper

means of defence.”

187

The topic was the ability to resist federal tyranny not slave

control.

In adopting the Constitution, the convention demanded, similar to those of

Virginia, a “Declaration of Rights” and a separate document entitled

“amend

ments

to the Constitution” with structural changes. The Declaration included:

“That the people have a right to keep and bear arms; that a well regulated militia,

composed of the body of the people, trained to arms, is the proper, natural, and

safe defence of a free state.”

188

The separate Amendments included “[t]hat each state respectively shall have

the power to provide for organizing, arming, and disciplining its own militia,

whensoever Congress shall omit or neglect to provide for the same.”

189

Once

again, the proposal concerning the state militia power was entirely separate from

the right of the people to bear arms.

The convention closed by resolving not to ratify the Constitution before

amendments were proposed by Congress.

190

North Carolina then adopted the

Constitution on November 21, 1789, several weeks after Congress passed the Bill

of Rights and proposed it to the states.

191

North Carolina was not part of a secret cabal with Madison to ensure the

Second Amendment’s adoption to protect slavery. Instead, it was one of an

alli-

ance

of states to guarantee the adoption of the Bill of Rights to protect liberty.

The last holdouts in that alliance were Rhode Island and Vermont, where slavery

was abolished. These states would not ratify the Constitution until it appeared

that ratiﬁcation of the Bill of Rights by the states was a foregone conclusion.

185. To the People of North Carolina, WILMINGTON CENTINEL, reprinted in N.Y. J. & DAILY

PATRIOTIC REG., April 21, 1788, at 2, col. 2.

186. N

ORTH CAROLINA DECLARATION OF RIGHTS, XVII (1776).

187. Elliot, supra note 71, at 203.

188. Id. at 244.

189. Id. at 245.

190. Id. at 251.

191. Elliot, supra note 67, at 333.

606 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

B. Having Abolished Slavery, Rhode Island Demands Recognition of the Right

to Bear Arms and Abolition of the Slave Trafﬁc

Rhode Island abolished slavery in 1784, declaring that “all

Men are entitled to

Life, Liberty, and the Pursuit of Happiness, and the holding Mankind in a State of

Slavery, as private Property, which has gradually obtained by unrestrained

Custom and the Permission of the Laws, is repugnant to this Principle, and

subver

sive

of the Happiness of Mankind, the great End of all civil Government.”

192

See Act Authorizing the Manumission of Negroes, Mulattoes and Others, and for the Gradual

Abolition of Slavery (Feb. 26, 1784), https://americasbesthistory.com/abhtimeline1784m.html [https://

perma.cc/5XZQ-8M66]; see also Z

ILVERSMIT, supra note 42, at 119–21.

Rhode Island was the last of the original thirteen states to ratify the federal

Constitution, which took place on May 29, 1790. In doing so, the convention

declared:

1st. That there are certain natural rights, of which men when they form a

social compact, cannot deprive or divest their posterity, among which are the

enjoyment of Life and Liberty, with the means of acquiring, possessing and

protecting Property, and pursuing and obtaining happiness and safety. . . .

17th. That the people have a right to keep and bear arms, that a well regu-

lated militia, including the body of the people capable of bearing arms, is the

proper, natural and safe defence of a free state.

193

Declaring “that the rights aforesaid cannot be abridged or violated,” the con-

vention

ratiﬁed the Constitution.

194

But that was not all. The convention also

demanded the ratiﬁcation of amendments to the Constitution, and of laws to be

passed by Congress in the meantime, including:

As a trafﬁck tending to establish or continue the slavery of any part of the

human species, is disgraceful to the cause of liberty and humanity, that

Congress shall, as soon as may be, promote and establish such laws and regula-

tions, as may effectually prevent the importation of slaves of every description

into the United States.

195

Until the amendments were agreed to, the convention declared “the militia of

this state will not be continued in service outside of this State for a longer term

than six weeks, without the consent of the legislature thereof.”

196

Such a state-

ment

was a weaker form of a prior proposal: “The militia, when called forth, shall

not be marched out of the State to which they belong, except some one of the

192.

193. 26 T

HE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 997 (J. Kaminksi

et al. eds., 2013).

194. Id. at 999.

195. Id. at 1002.

196. Id. at 999.

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 607

States shall be actually invaded by a foreign enemy, or extreme necessity require

it.”

197

On June 11, 1790, Rhode Island ratiﬁed all the amendments that constituted

the Bill of Rights but rejected an amendment concerning compensation for

mem-

bers

of Congress—which would never be ratiﬁed.

198

As this reﬂected, states could

pick and choose which amendments to ratify or reject. If the Second Amendment

was part of an unspoken understanding to protect slavery, Rhode Island would

have rejected it. Rhode Island had abolished slavery six years earlier and adopted

the Constitution with the understanding that the people had a right to keep and

bear arms. At the same time, it demanded an end to the importation of slaves, and

now ratiﬁed the Bill of Rights. In no manner was the right to bear arms considered

a protection of slavery.

C. Vermont Adopts the First Constitution Both to Recognize the Right to Bear

Arms and to Abolish Slavery, and Later Ratiﬁes the Second Amendment

In its ﬁrst constitution, adopted in 1777, Vermont would copy Pennsylvania’s

guarantee of the right to bear arms and would also abolish slavery. As it was not

recognized as a state to enter the Union until 1791, technically it was not the ﬁrst

“state” to abolish slavery. However, Vermont did so three years before

Pennsylvania’s abolition act took effect.

Vermont’s Declaration of Rights of 1777 set forth the following fundamental

rights and abolished slavery, all in the same article:

That all men are born equally free and independent, and have certain natural, in-

herent, and unalienable rights, amongst which are the enjoying and defending life

and liberty; acquiring, possessing, and protecting property, and pursuing and

obtaining happiness and safety. Therefore, no male person, born in this country, or

brought from over sea, ought to be holden by law, to serve any person, as a serv-

ant, slave, or apprentice, after he arrives to the age of twenty-one Years; nor

female, in like manner, after she arrives to the age of eighteen years.

199

Adoption of this provision did not immediately end all forms of slavery in

Vermont, but it was a major step forward. Professor Harvey Amani Whitﬁeld

writes: “Without question, the Green Mountain State’s 1777 abolition provision

provided an essential foundation for the end of slavery in Vermont and other

Northern states. It stands as an important monument to the slow legislative stran

gling of slavery in the North.”

200

197. 24 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 218 (J. Kaminski

et al. eds., 2011).

198. 26 T

HE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1041–42 (J.

Kaminksi et al. eds., 2013).

199. V

T. CONST. ch. 1, art. I; see also ZILVERSMIT, supra note 42, at 116.

200. H

ARVEY AMANI WHITFIELD, THE PROBLEM OF SLAVERY IN EARLY VERMONT, 1777–1810, at 3

(2014).

608 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

The Vermont Declaration also provided: “That the people have a right to bear

arms for the defence of themselves and the State; and, as standing armies, in the

time of peace, are dangerous to liberty, they ought not to be kept up.”

201

Exercise

of that right was exempliﬁed by Ethan and Ira Allen, Vermont’s leading founders,

who carried ﬁrearms for self-defense, hunting, and target shooting. On one

occa

sion,

while lodging with a Quaker, Ira Allen recalled: “We took our pistols out of

our holsters and carried them in with us. He looked at the pistols saying ‘What

doth thee do with those things?’ He was answered ‘Nothing amongst our friends,’

but we were Green Mountain boys, and meant to protect our persons and

property.”

202

Exercise of the right to bear arms in defense of the State was exempliﬁed in the

Battle of Bennington on August 16, 1777. General John Burgoyne sent a party of

Hessians along with some loyalists and Indians to seize the town of Bennington,

Vermont, to conﬁscate cattle and other provisions and to intimidate the people in

that area. He was met by New Hampshire Militia General John Starks—who had

“assembled 1,492 militiamen in civilian clothes with personal ﬁrearms”

203

John Stark,

EVWARTALK, https://www.revwartalk.com/john-stark-2/ (last visited May 12,

2022).

—

joined by some of the Green Mountain Boys from Vermont.

Contemporary

historian David Ramsay described the outcome: “On this occa

sion about 800 undisciplined militia, without bayonets, or a single piece of

artillery, attacked and routed 500 regular troops advantageously posted

behind entrenchments—furnished with the best arms, and defended with

two pieces of artillery.” This defeat of regulars by the militia greatly

encouraged the Americans.

204

When the federal Constitution was proposed, Vermont had not yet been admit-

ted

to the Union as a state. But the conversation over ratiﬁcation spilled over into

newspapers like the Vermont Gazette

. One author described how the strength of

the Massachusetts militia had dissuaded a French invasion decades before, adding

“how great a dread must a due arrangement of the militia of Columbia, strike on

the mind of any European despot, who may meditate to disturb our peace.”

205

An antifederalist found the proposed Constitution “so dangerous to the rights

and liberties of the people” that it would “end in tyranny and slavery” unless

amended.

206

Vermont ratiﬁed the Constitution on January 10, 1791, and the following

month, Congress passed an act admitting Vermont to statehood. On November 3,

1791, Vermont ratiﬁed the proposed amendments.

207

Its ratiﬁcation of the Second

201. VT. CONST. ch. 1, art. XV.

202. J

AMES B. WILBUR, IRA ALLEN: FOUNDER OF VERMONT, 1751–1814, at 40 (1928) (citing IRA

ALLEN, AUTOBIOGRAPHY (1799)).

203.

204. R

AMSAY, supra note 161, at 375–79.

205. 29 T

HE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 158 (J. Kaminski

et al. eds., 2009) (citing V

T. GAZETTE (Oct. 20, 1788)).

206. Id. at 161 (citing V

T. GAZETTE (Feb. 4, 1789)).

207. Id. at 230–31 (citing V

T. GAZETTE (Nov. 3, 1791)).

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 609

Amendment, given that it expressed Vermont’s own 1777 Declaration—which

also abolished slavery—was a foregone conclusion. In no way were Vermonters,

per the Bogus hypothesis, secretly tricked into adopting a provision to protect

slavery.

* * *

The Bill of Rights became effective on December 15, 1791. It included the

Second Amendment, which Professor Anderson asserts was “steeped in

anti-

Blackness,

swaddled in the desire to keep African-descended people rightless and

powerless, and as yet another bone tossed to keep the South molliﬁed and willing

to stay aligned with the grand experiment of the United States of America.”

208

The scholarly source she cites for that baseless proposition says nothing of the

kind other than that the Bill of Rights became the law of the land on that date.

209

As Anderson notes, “numerous states, especially in the North, allowed free

Blacks to be members of their militias.”

210

However, the federal Militia Act of

1792 required “every free able-bodied white male citizen” to enroll in the militia

and to “provide himself with a good musket” or other arms.

211

By contrast with

the “right” of “the people” protected by the Second Amendment, this imposed a

legal duty on a subclass of the people deﬁned by race. Even so, as Professors

Robert Cottrol and Ray Diamond point out, the Act did not exclude African

Americans, who were included in the militias of some of the Southern states.

212

In 1867, the term “white” was deleted from the Act so as to include the now-freed

Blacks in the militia.

213

The drive for what became the Second Amendment came more from the

Northern states, several of which had their own state guarantee, or demanded that

a right to bear arms be included in the federal Constitution. And these were the

same states that had abolished or were in the process of abolishing slavery. The

defect in the American polity was the failure of the Southern states, due to

slav

ery,

to extend recognition of that and all other fundamental rights to African

Americans.

VI. T

HE AFTERMATH: EXTENDING SECOND AMENDMENT RIGHTS TO ALL OF “THE

PEOPLE,” INCLUDING AFRICAN AMERICANS

Now that the Constitution and Bill of Rights were ratiﬁed, the Union began to

grow. The right to bear arms was recognized for free citizens. Calling the Second

Amendment “the true palladium of liberty,” St. George Tucker wrote: “The right

of self defence is the ﬁrst law of nature

. . . .

Wherever . . .

the right of the people

208. ANDERSON, supra note 6, at 145.

209. N

ICHOLAS J. JOHNSON, ET AL., FIREARMS LAW AND THE SECOND AMENDMENT 218 (2012).

210. A

NDERSON, supra note 6, at 47 (citing Robert J. Cottrol & Raymond T. Diamond, The Second

Amendment: Toward an Afro-Americanist Reconsideration, 80 G

EO. L.J. 309, 331 (1991)).

211. 1 Stat. 271 (1792).

212. Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-

Americanist Reconsideration, 80 G

EO. L.J. 309, 331–32 (1991).

213. 14 Stat. 422, 423 (1867).

610 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

to keep and bear arms is, under any colour or pretext whatsoever, prohibited, lib-

erty, if not already annihilated, is on the brink of destruction.”

214

But American liberties continued to be marred by slavery in the Southern

states. Moreover, restrictions extended even to free persons of color. For instance,

Virginia’s 1819 Code provided: “No free negro or mulatto shall be suffered to

keep or carry any ﬁrelock of any kind, any military weapon, or any powder or

lead, without ﬁrst obtaining a license from the court of the county or corporation

in which he resides.”

215

As a Virginia court held, among the “numerous restric-

tions

imposed on this class of people [free Blacks] in our Statute Book, many of

which are inconsistent with the letter and spirit of the Constitution, both of this

State and of the United States,

” was the restriction “upon their right to bear

arms.”

216

Similarly, an 1806 Maryland law made it unlawful “for any negro or mulatto

. . . to

keep any . . .

gun, except he be a free negro or mulatto.”

217

It was further

unlawful “for any free negro or mulatto to go at large with any gun, or other

of-

fensive

weapon,” but this did not “prevent any free negro or mulatto from carry-

ing

a gun” if he had “a certiﬁcate from a justice of the peace, that he is an orderly

and peaceable person.”

218

A Maryland court described “free negroes” as being

treated as “a vicious or dangerous population,” as exempliﬁed by laws “to prevent

their migration to this State; to make it unlawful for them to bear arms; to guard

even their religious assemblages with peculiar watchfulness.”

219

Even so, some

free Blacks obtained both licenses to travel and to carry ﬁrearms. Professor

Martha Jones studied court records of such licenses and observes: “As they

trav

eled

with a permit or carried a licensed gun, they were that much closer to

citizenship.”

220

In 1846, the Georgia Supreme Court invalidated a ban on the open carry of pis-

tols,

explaining: “The right of the whole people, old and young, men, women and

boys, and not militia only, to keep and bear arms of every description, and not

such merely as are used by the militia, shall not be infringed, curtailed, or broken

in upon, in the smallest degree.”

221

As Professor Anderson points out, that did not

invalidate a Georgia law (similar to those in other Southern states) prohibiting

free persons of color from owning or carrying ﬁrearms, thus showing that “[t]he

‘right to bear arms’ was not a right at all.”

222

But the problem was that this right, like other rights, was not extended to

African Americans. As the Georgia high court would hold: “Free persons of color

214. 1 ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES, App. 300 (1803).

215. Ch. 111, §§ 7 & 8, 1 V

A. CODE 423 (1819).

216. Aldridge v. Commonwealth, 4 Va. (2 Va. Cas.) 447, 449 (Gen. Ct. 1824).

217. Ch. 8681, § I (1806), Laws of Md. 542–43 (1811).

218. Id. at § IIII.

219. Waters v. State, 1 Gill 302, 309 (Md. 1843).

220. M

ARTHA S. JONES, BIRTHRIGHT CITIZENS: A HISTORY OF RACE AND RIGHTS IN ANTEBELLUM

AMERICA 106–07 (2018).

221. Nunn v. State, 1 Ga. (1 Kelly) 243, 251 (Ga. 1846).

222. A

NDERSON, supra note 6, at 70–71.

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 611

have never been recognized here as citizens; they are not entitled to bear arms,

vote for members of the legislature, or to hold any civil ofﬁce.”

223

But it was the Dred Scott decision that ultimately denied citizenship to Blacks.

It argued against recognition of the citizenship of African Americans because

that “would give to persons of the negro race, who were recognized as citizens in

any one State of the Union, the right to enter every other State whenever they

pleased

. . . ; and

it would give them the full liberty of speech . . . ,

and to keep and

carry arms wherever they went.”

224

Exclusion of African Americans from the rights of “the people” in the Second

Amendment and other Bill of Rights guarantees conﬂicted with the explicit text.

The abolitionists—unaware of the unknown “hidden history” of the Amendment

discovered by Bogus—took advantage of this discrepancy in arguing that slavery

was unconstitutional.

225

Lysander Spooner wrote that the Second Amendment

“recognize[s] the natural right of all men ‘to keep and bear arms’ for their

perso-

nal

defence: and prohibit both Congress and the State governments from infring-

ing

the right of ‘the people’—that is, of any of the people—to do so.”

226

And Joel

Tiffany wrote that the Second Amendment “is absolutely inconsistent with

per-

mitting

a portion of our citizens to be enslaved.”

227

Frederick Douglass agreed that Spooner and Tiffany “vindicated the Constitution

from any design to support slavery for an hour.”

228

The constitutionality of slavery

upheld in Dred Scott disregarded “the plain and commonsense reading of the

instrument itself; by showing that the Constitution does not mean what it says, and

says what it does not mean.”

229

With slavery ending, Douglass advised that the

freed people “must have the cartridge box, the jury box, and the ballot box, to

pro-

tect

them.”

230

Frederick Douglass embraced the Second Amendment. Today, Professor

Anderson denounces it.

While the Thirteenth Amendment abolished slavery, the Southern states

enacted the

Black codes. For instance, an 1865 South Carolina law provided that

no person of color “shall, without permission in writing from the District Judge

or Magistrate, be allowed to keep a ﬁre-arm.”

231

An African American conven-

tion

resolved that “the late efforts of the Legislature of this State to pass an act to

deprive us of arms be forbidden, as a plain violation of the Constitution.”

232

Senator Charles Sumner summarized the petition, noting “that they should have

223. Cooper v. Mayor & Aldermen of Savannah, 4 Ga. 68, 72 (Ga. 1848).

224. Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857).

225. J

ACOBUS TENBROEK, EQUAL UNDER LAW 110–13, 126 (1965).

226. L

YSANDER SPOONER, THE UNCONSTITUTIONALITY OF SLAVERY 98 (1860).

227. J

OEL TIFFANY, A TREATISE ON THE UNCONSTITUTIONALITY OF SLAVERY 117–18 (1849).

228. 2 F

REDERICK DOUGLASS, LIFE AND WRITINGS 201 (1950).

229. Id. at 420.

230. Frederick Douglass on the American Crisis, N

EWCASTLE WKLY. COURANT, May 26, 1865, at 6.

231. 1864–1865 S.C. Acts 275.

232. 2 P

ROCEEDINGS OF THE BLACK STATE CONVENTIONS, 1840–1865, at 302 (1980).

612 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

the constitutional protection in keeping arms, in holding public assemblies, and

in complete liberty of speech and of the press.”

233

The Loyal Georgian, a Black newspaper, editorialized: “Article II, of the

amendments to the Constitution of the United States, gives the people the right to

bear arms, and states that this right shall not be infringed

. . . . All men, without

distinction of color, have the right to keep and bear arms to defend their homes,

families or themselves.”

234

Deprivation of the right to bear arms was debated in bills leading to enactment

of the Freedmen’s Bureau Act of 1866, which declared that the rights to “personal

liberty” and “personal security,

. . . including the constitutional right to bear arms,

shall be secured to and enjoyed by all the citizens

. . . without respect to race or

color or previous condition of slavery.”

235

Introducing the Fourteenth Amendment in the Senate, Jacob Howard referred

to “the personal rights guaranteed and secured by the ﬁrst eight amendments of

the Constitution; such as

. . . the right to keep and bear arms.”

236

He averred: “The

great object of the ﬁrst section of this amendment is, therefore, to restrain the

power of the States and compel them at all times to respect these great

fundamen

tal

guarantees.”

237

The Amendment was ratiﬁed in 1868. As the Supreme Court

would rule in McDonald v. Chicago (2010), “the Framers and ratiﬁers of the

Fourteenth Amendment counted the right to keep and bear arms among those

fun

damental

rights necessary to our system of ordered liberty.”

238

The Civil Rights Act of 1871, today’s 42 U.S.C. § 1983, provides that any per-

son

who, under color of State law, subjects a person “to the deprivation of any

rights, privileges, or immunities secured by the Constitution” is civilly liable.

239

As McDonald relates, in passing the Act, “Congress routinely referred to the right

to keep and bear arms and decried the continued disarmament of blacks in the

South.”

240

A year after the Act’s passage, President Grant reported that in parts of

the South, Ku Klux Klan groups continued to seek “to deprive colored citizens of

the right to bear arms and of the right to a free ballot.”

241

The Fourteenth Amendment did away with actually naming African

Americans in laws prohibiting the right to bear arms. Instead, in the Jim Crow

era, facially neutral laws imposed prohibitive fees and restrictions on the poor

and were selectively enforced in ways to deny the right of Black citizens to

233. CONG. GLOBE, 39th Cong., 1st Sess. 337 (1866).

234. Editorial, Have Colored Persons A Right to Own and Carry Fire Arms?, L

OYAL GEORGIAN,

Feb. 3, 1866, at 3.

235. Act of Jul. 16, 1866, § 14, 14 Stat. 173, 176–77 (1866).

236. C

ONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866).

237. Id. at 2766.

238. McDonald v. City of Chicago, 561 U.S. 742, 778 (2010).

239. Act of Apr. 20, 1871, 17 Stat. 13 (1871).

240. McDonald, 561 U.S. at 776, (citing S

TEPHEN P. HALBROOK, FREEDMEN, THE FOURTEENTH

AMENDMENT, AND THE RIGHT TO BEAR ARMS 120–31(1998)).

241. Message to the House of Representatives on the Condition of Affairs in the Southern States,

Exec. Doc. No. 268, 42nd Cong., 2d Sess. 2 (1872).

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 613

possess and carry arms. One such Florida law was “for the purpose of disarming

the negro laborers . . . . The statute was never intended to be applied to the white

population.”

242

Despite such Jim Crow laws, there is a long tradition of exercise of Second

Amendment rights by African Americans. In 1892, Ida B. Wells wrote that a

“Winchester riﬂe should have a place of honor in every black home, and it should

be used for that protection which the law refuses to give.”

243

Professor Anderson

mentions Wells but ignores that advice. Yet she does describe how in 1906

in Atlanta armed African Americans fought off mobs intent on death and

destruction.

244

The Jim Crow era, with its regime of legal discrimination based on race, ended

with the enactment of federal civil rights legislation in the 1960s. Exercise of the

right to bear arms for self-defense was essential to protect members of the civil

rights movement. African Americans, including civil rights icons, had a long

tra

dition

of carrying ﬁrearms to protect themselves and their communities.

245

Laws that bestow discretion on ofﬁcials to decide whether a person has a “spe-

cial

need” to exercise Second Amendment rights make possible discrimination

based on race or other irrelevant characteristics and may even result in denial of

the right to the public at large. At the time of the protest against segregated

seat

ing

on buses in Birmingham, Alabama, in 1956, a news item reported about

Martin Luther King, Jr.: “A Negro boycott leader whose home was bombed

ear-

lier

this week has been denied a pistol permit, the sheriff’s department said yes-

terday.”

246

At a meeting of the boycott committee, Reverend King was quoted as

stating: “I went to the sheriff to get a permit for those people who are guarding

me. ‘Couldn’t get one.’ In substance, he was saying ‘you are at the disposal of the

hoodlums.’”

247

Donald T. Ferron, Notes on MIA Executive Board Meeting, in 3 T

HE PAPERS OF MARTIN

LUTHER KING, JR.: BIRTH OF A NEW AGE, DECEMBER 1955–DECEMBER 1956 (Clayborne Carson

et al. eds., 1977), https://kinginstitute.stanford.edu/king-papers/documents/notes-mia-executive-

board-meeting-donald-t-ferron-1 [https://perma.cc/XLE6-JFPY].

At that time, Alabama law gave discretion to ofﬁcials to issue a license to carry

a pistol if the applicant had “good reason to fear an injury” or “other proper

rea-

son.”

248

Today, most states issue carry permits to all law-abiding persons without

regard to an ofﬁcial’s subjective decision about the applicant’s “need.” A handful

of states ban the right to bear arms to all persons except those with what the police

242. Watson v. Stone, 4 So. 2d 700, 703 (Fla. 1941) (en banc) (Buford, J., concurring).

243. I

DA B. WELLS, SOUTHERN HORRORS: LYNCH LAW IN ALL ITS PHASES 22 (1892).

244. A

NDERSON, supra note 6, at 104–08.

245. See N

ICHOLAS JOHNSON, NEGROES AND THE GUN: THE BLACK TRADITION OF ARMS (2014);

HARLES E. COBB, JR., THIS NONVIOLENT STUFF’LL GET YOU KILLED: HOW GUNS MADE THE CIVIL

RIGHTS MOVEMENT POSSIBLE (2014).

246. Negro Leader Fails to Get Pistol Permit, M

ONTGOMERY ADVERTISER, Feb. 4, 1956, at 3B.

247.

248. Uniform

Firearms

Act, Acts 1936 Ala. Laws, Ex. Sess., No. 82, § 7, 51, 52.

614 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:575

deem a “special need,” such as the New York law

249

that at the time of this writ-

ing is pending before the Supreme Court.

250

As Professor Anderson recounts, in 1967, the Black Panther Party for Self-

Defense adopted a Ten-Point Program that included: “The Second Amendment

of the Constitution of the United States gives us a right to bear arms. We therefore

believe that all Black people should arm themselves for self-defense.”

251

When

they exercised that very right, the California legislature passed legislation to

infringe on the right. Since then, the law has become even more restrictive in

giv-

ing

ofﬁcials power to limit the right to a privileged few. When the Supreme Court

declined to review a decision upholding the law, Justice Clarence Thomas wrote:

For those of us who work in marbled halls, guarded constantly by a vigilant

and dedicated police force, the guarantees of the Second Amendment might

seem antiquated and superﬂuous. But the Framers made a clear choice: They

reserved to all Americans the right to bear arms for self-defense. I do not think

we should stand by idly while a State denies its citizens that right, particularly

when their very lives may depend on it.

252

At the bottom, Professor Anderson’s actual critique centers on the infringe-

ment

of Second Amendment rights, not on the right to bear arms itself. By con-

trast,

Professor Bogus denies that the Amendment recognizes any individual right

to be armed for self-defense and seeks to reduce the Amendment to a state militia

power with the purpose of repressing the right to bear arms of an enslaved

population.

ONCLUSION: HIDDEN HISTORY–OR NO HISTORY?

Bogus ends his “Hidden

History”—which should be called “No History”—

with two points that betray the work as a political tract to support laws

criminaliz-

ing

the right to bear arms. First, he claims: “The Amendment deals with keeping

and bearing arms in the militia, subject to federal and state regulation. Therefore,

to the extent original intent matters, the hidden history of the Second Amendment

strongly supports the collective rights position.”

253

Of course, the Amendment

recognizes “the right of the people to keep and bear arms,” not the duty of a

seg-

ment

of the people to serve in the militia. The “collective rights” theory was

invented to deny Second Amendment rights, has no basis in text, history, or

249. Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 86 (2d Cir. 2012), cert. denied, 569 U.S. 918

(2013) (citations omitted).

250. See N.Y. State Riﬂe & Pistol Ass’n v. Bruen, No. 20-843 (U.S. argued Nov. 3, 2021) (Supreme

Court, Public Docket Files).

251. A

NDERSON, supra note 6, at 130.

252. Peruta v. California, 137 S. Ct. 1995, 1999–2000 (2017) (Thomas, J., dissenting from denial of

certiorari).

253. Bogus, supra note 2, at 404.

2022] SECOND AMENDMENT: TO PROTECT LIBERTY, NOT SLAVERY 615

tradition, and was soundly rejected by the Supreme Court in District of Columbia

v. Heller (2008).

254

Second, Bogus asserts with apparent hope: “The Second Amendment takes on

an entirely different complexion when instead of being symbolized by a musket

in the hands of the minuteman, it is associated with a musket in the hands of the

slave holder.”

255

A musket in the hands of the minuteman, which is historically

accurate, symbolizes the use of arms to win freedom. The musket in the hands of

the slave holder and the ban on the musket by the slave symbolize the denial of

Second Amendment rights. The musket in the hands of the black freedman

sym

bolizes

the end of slavery and the extension of the right to bear arms—as the text

requires—to “the people,” all of them.

The right

to keep and bear arms enables the people to have arms for self-

defense, hunting, and

resistance to invasion and tyranny. Slavery infringed on

Second Amendment rights as well as many other rights. If the Second Amendment

was the result of a covert deal to protect slavery, about which no record survives, it

remains perhaps the best kept secret of the eighteenth century.

254. District of Columbia v. Heller, 554 U.S. 570, 584–89 (2008).

255. Bogus, supra note 2, at 407.

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