What the NRA and GOP demagogues don’t want you to know about the Second Amendment.
It was about slavery.
Amendment II.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Imagine it’s 1787, and you’re Patrick Henry, former governor of Virginia, sweltering in an un-air-conditioned Philadelphia summer. Or maybe you’re a different White male Virginian, George Mason. Regardless, you oppose any effort to create a strong central government.
You’ve gathered in secret with other White men (total of 55) representing 12 of the 13 states that recently broke away from England. There are no Black men here, although one-fifth of the new nation’s population is Black. Nor are there any women.
In Virginia, the most populous state in the new union, almost half (44%) of the population is Black. Coming in a distant second in total population, New York is only 8% Black. Women account for not quite half of the free White population.
The first governing charter, the Articles of Confederation, isn’t working. The group pivots from its original goal of a rewrite and instead hammers out a new agreement, the “founding” document we call the U.S. Constitution.
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Although there were probably more than two factions, the two we know are Federalists and Anti-Federalists. The Federalists believe that there are enough “existing limitations on the national government” and count Virginian James Madison as a member. The Anti-Federalists “feared a strong national government” and count Henry and Mason as members.
State militias are comprised of part-time citizen-soldiers, and the states keep track of their weapons. These weapons are, in the main, muskets with bayonets powered with gunpowder and a single lead musket ball.
The newly drafted Constitution allocates shared responsibility for control of the militia to the Congress and the president. Specifically, Article I, Section 8, Clause 15, the Constitution reads:
[The Congress shall have Power . . . ] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; to provide for organizing, arming, and disciplining, the Militia…reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress…
Therefore, ultimate authority for the militia lies with the federal government, not the states. Governors control state militia, which are largely focused on slave patrol in the south, but only “when not under federal authority.”
Although the Anti-Federalists had proposed amendments that would have altered this language in the Constitution, those amendments failed.
It’s now June 1788.
For ratification, nine of the 13 states needed to adopt the Constitution; eight had had already ratified.
In arguing that South Carolina should ratify the Constitution, Charles Pinckney cut to the heart of the opposition. He “assured the state House of Representatives” that the “general government” could not emancipate their slaves and that “all rights not expressed were reserved by the states.”
The ninth state, New Hampshire, would ratify the Constitution on 21 June 1788, while the Virginia convention was ongoing.
In Virginia, Anti-Federalists Henry and Mason argued against ratifying the Constitution. Their argument: the Federalists failed to give enough power to the state militias, the chief system for controlling the southern slave population.
“Slavery is detested,” Henry reminded [those at the convention]. “The majority of Congress is to the North, and the slaves are to the South,” he said.
White people had cause to worry.
In 1739, a slave rebellion in Stono, SC, (“ the largest uprising of enslaved people in the British mainland colonies prior to the American Revolution”) had left two shopkeepers dead. Dozens died as the slaves headed south. “Armed, mounted militiamen” squashed the rebellion.
Henry and Mason argued that because the Constitution gave the federal government the power to arm the militias, only the federal government could do so. “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,” Henry declared.
Henry and Mason appealed to the “fear of slave insurrection.”
Virginia would narrowly ratify the Constitution on 26 June 1788 based upon the promise of a Bill of Rights that would secure state control of militias.
Madison successfully ran for the US House of Representatives that fall in a district where White landed men wanted a Bill of Rights. To get elected, Madison said he would write one.
Madison was willing to put a provision in the Bill of Rights explicitly stating that Congress would not disarm the state militias. At the same time, he had no interest in preventing Congress from regulating weapons in the places where Congress had clear legislative power.
Modern voices revisit history
In 1988, Carl T. Bogus, professor at Roger Williams University School of Law in Rhode Island, published “The Hidden History of the Second Amendment” in The University of California at Davis Law Review. (I’ve liberally linked to his 2018 New York Times essay above.)
Surprise! Professor Bogus opens with context missing in today’s rhetoric. In 1988, the US Supreme Court had directly ruled on the Second Amendment in only three cases, with the most recent being 1939.
In The Second: Race and Guns in a Fatally Unequal America (2021), historian Carol Anderson elaborates on the role of the militia:
The Second Amendment really provided the cover, the assurances that Patrick Henry and George Mason needed, that the militias would not be controlled by the federal government, but that they would be controlled by the states and at the beck and call of the states to be able to put down [slave] uprisings.
In Allow Me To Retort: A Black Guy’s Guide to the Constitution (2022), attorney and The Nation’s legal analyst Elie Mystal reiterates: the Second Amendment was not presented as “an idealized right of citizens’ militias to resist federal power.”
[It] was a practical concern that the antislavery North would leave the South vulnerable to slave revolts.
Flash forward to today.
Repeated messaging, even of lies and deliberate misinformation, is effective. (It’s called illusory truth.) Poster child: how the National Rifle Association (NRA) has transformed what most Americans believe about the Second Amendment.
“A fraud on the American public.” That’s how former Chief Justice Warren Burger described the idea that the Second Amendment gives an unfettered individual right to a gun. When he spoke these words to PBS in 1990, the rock-ribbed conservative appointed by Richard Nixon was expressing the longtime consensus of historians and judges across the political spectrum.
Yet by the mid-1990s, the NRA had “[built] a body” of legal writings to buttress not just an individual’s right to a gun but also the novel “insurrectionist” theory. That is the “idea that the ultimate purpose of an armed citizenry is to be prepared to fight the government itself.”
In 2003, the NRA Foundation endowed the Patrick Henry professorship in constitutional law and the Second Amendment at George Mason University Law School. Their investment: $1 million.
This fusillade of scholarship and pseudo-scholarship insisted that the traditional view — shared by courts and historians — was wrong. There had been a colossal constitutional mistake. Two centuries of legal consensus, they argued, must be overturned.
It worked. Most Americans don’t know that the “right” for an individual to own a gun is modern, not foundational.
In 1959, according to a Gallup poll, 60 percent of Americans favored banning handguns; that dropped to 41 percent by 1975 and 24 percent in 2012. By early 2008, according to Gallup, 73 percent of Americans believed the Second Amendment “guaranteed the rights of Americans to own guns” outside the militia.
That “right” came to be in 2008 with the US Supreme Court ruling in District of Columbia v. Heller. Until that 5–4 decision, the Supreme Court treated “well regulated militia” as it appears in the historical record.
From 1888, when law review articles first were indexed, through 1959, every single one on the Second Amendment concluded it did not guarantee an individual right to a gun. The first to argue otherwise…appeared in 1960. He began by citing an article in the NRA’s American Rifleman magazine and argued that the amendment enforced a “right of revolution,” of which the Southern states availed themselves during what the author called “The War Between the States.”
In Heller, the Court reversed a 1976 law in Washington, DC that required individuals to have a trigger lock on loaded handguns in their homes. (Remember, DC citizens aren’t represented in the Senate and have no voting member in the House.)
Mystal argues that if the NRA had to accept that the Second Amendment has evolved “to protect a different right” than Madison, Mason or Henry intended, “they’d have to admit that gun restrictions can also evolve to better protect our modern society.”
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In this essay, I am not rewriting history. I’m highlighting how history has been folded, spindled and mutilated.
About half of gun-related deaths in the US are suicides. Guns are the weapon of choice in domestic violence. Semi-automatic weapons designed solely to kill people and weapons with large magazines are the choice for mass murder, a uniquely American malady.
How do we reframe discussion surrounding gun ownership?
How do we force an acknowledgement that Anti-Federalist, slave-state beliefs have come to dominate modern political discourse while hiding behind “originalism” claims?
