After the Sale: Slaves Going South from Richmond by Eyre Crowe,
1853 (Now hanging in the Chicago History Museum)
The real reason the Second Amendment was ratified, and why it
says “State” instead of “Country” (the Framers knew the difference – see the
10th Amendment), was to preserve the slave patrol militias in the southern
states, which was necessary to get Virginia’s vote. Founders Patrick
Henry, George Mason, and James Madison were totally clear on that . . . and we
all should be too.
In the beginning, there were the militias. In the South, they
were also called the “slave patrols,” and they were regulated by the states.
In Georgia, for example, a generation before the American
Revolution, laws were passed in 1755 and 1757 that required all plantation
owners or their male white employees to be members of the Georgia Militia, and
for those armed militia members to make monthly inspections of the quarters of
all slaves in the state. The law defined which counties had which armed militias
and even required armed militia members to keep a keen eye out for slaves who
may be planning uprisings.
As Dr. Carl T. Bogus wrote for
the University of California Law Review in
1998, “The Georgia statutes required patrols, under the direction of
commissioned militia officers, to examine every plantation each month and
authorized them to search ‘all Negro Houses for offensive Weapons and
Ammunition’ and to apprehend and give twenty lashes to any slave found outside
plantation grounds.”
It’s the answer to the question
raised by the character played by Leonardo DiCaprio in Django
Unchained when he asks, “Why don’t they just rise up and kill the
whites?” If the movie were real, it would have been a purely rhetorical
question, because every southerner of the era knew the simple answer: Well
regulated militias kept the slaves in chains.
Sally E. Haden, in her book Slave
Patrols: Law and Violence in Virginia and the Carolinas, notes that, “Although
eligibility for the Militia seemed all-encompassing, not every middle-aged
white male Virginian or Carolinian became a slave patroller.” There were
exemptions so “men in critical professions” like judges, legislators and
students could stay at their work. Generally, though, she documents how
most southern men between ages 18 and 45 – including physicians and ministers –
had to serve on slave patrol in the militia at one time or another in their
lives.
And slave rebellions were keeping the slave patrols busy.
By the time the Constitution was ratified, hundreds of
substantial slave uprisings had occurred across the South. Blacks
outnumbered whites in large areas, and the state militias were used to both
prevent and to put down slave uprisings. As Dr. Bogus points out, slavery
can only exist in the context of a police state, and the enforcement of that
police state was the explicit job of the militias.
If the anti-slavery folks in the North had figured out a way to
disband – or even move out of the state – those southern militias, the police
state of the South would collapse. And, similarly, if the North were to
invite into military service the slaves of the South, then they could be emancipated,
which would collapse the institution of slavery, and the southern economic and
social systems, altogether.
These two possibilities worried southerners like James Monroe,
George Mason (who owned over 300 slaves) and the southern Christian evangelical,
Patrick Henry (who opposed slavery on principle, but also opposed freeing
slaves).
Their main concern was that Article 1, Section 8 of the
newly-proposed Constitution, which gave the federal government the power to
raise and supervise a militia, could also allow that federal militia to subsume
their state militias and change them from slavery-enforcing institutions into
something that could even, one day, free the slaves.
This was not an imagined threat. Famously, 12 years
earlier, during the lead-up to the Revolutionary War, Lord Dunsmore offered
freedom to slaves who could escape and join his forces. “Liberty to
Slaves” was stitched onto their jacket pocket flaps. During the War,
British General Henry Clinton extended the practice in 1779. And numerous
freed slaves served in General Washington’s army.
Thus, southern legislators and plantation owners lived not just
in fear of their own slaves rebelling, but also in fear that their slaves could
be emancipated through military service.
At the ratifying convention in Virginia in 1788, Henry laid it
out:
“Let me here call your attention to that part [Article 1,
Section 8 of the proposed Constitution] which gives the Congress power to
provide for organizing, arming, and disciplining the militia, and for governing
such part of them as may be employed in the service of the United States.
“By this, sir, you see that their control over our last and best
defence is unlimited. 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 pleasure of Congress, be rendered
nugatory.”
George Mason expressed a similar fear:
“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 governments cannot do it, for Congress
has an exclusive right to arm them [under this proposed Constitution] . . . “
Henry then bluntly laid it out:
“If
the country be invaded, a state may go to war, but cannot suppress [slave]
insurrections [under this new Constitution]. If there should happen an
insurrection of slaves, the country cannot be said to be invaded. They cannot,
therefore, suppress it without the interposition of Congress . . .. Congress,
and Congress only [under this new Constitution], can call forth the militia.”
And why was that such a concern
for Patrick Henry?
“In this state,” he said, “there are two hundred and thirty-six
thousand blacks, and there are many in several other states. But there are few
or none in the Northern States. . .. May Congress not say, that every black man
must fight? Did we not see a little of this last war? We were not so hard
pushed as to make emancipation general; but acts of Assembly passed that every
slave who would go to the army should be free.”
Patrick Henry was also convinced that the power over the various
state militias given the federal government in the new Constitution could be
used to strip the slave states of their slave-patrol militias. He knew
the majority attitude in the North opposed slavery, and he worried they’d use
the Constitution to free the South’s slaves (a process then called
“Manumission”).
The abolitionists would, he was certain, use that power (and,
ironically, this is pretty much what Abraham Lincoln ended up doing):
“[T]hey
will search that paper [the Constitution], and see if they have power of
manumission,” said Henry. “And have they not, sir? Have they not power to
provide for the general defence and welfare? May they not think that these call
for the abolition of slavery? May they not pronounce all slaves free, and will
they not be warranted by that power?
“This
is no ambiguous implication or logical deduction. The paper speaks to the
point: they have the power in clear, unequivocal terms, and will clearly and
certainly exercise it.”
He added: “This is a local matter, and I can see no propriety in
subjecting it to Congress.”
James Madison, the “Father of the Constitution” and a
slaveholder himself, basically called Patrick Henry paranoid.
“I was struck with
surprise,” Madison said, “when I heard him express himself alarmed with respect to the
emancipation of slaves. . . . There is no power to warrant it, in that paper
[the Constitution]. If there be, I know it not.”
But the southern fears wouldn’t go away.
Patrick Henry even argued that southerner’s “property” (slaves)
would be lost under the new Constitution, and the resulting slave uprising
would be less than peaceful or tranquil:
“In
this situation,” Henry said to Madison, “I see a great deal of the property of
the people of Virginia in jeopardy, and their peace and tranquility gone.”
So Madison, who had (at Jefferson’s insistence) already begun to
prepare proposed amendments to the Constitution, changed his first draft of one
that addressed the militia issue to make sure it was unambiguous that the
southern states could maintain their slave patrol militias.
His first draft for what became the Second Amendment had said:
“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 [emphasis mine]: but no person religiously scrupulous of
bearing arms, shall be compelled to render military service in person.”
But Henry, Mason and others wanted southern states to preserve
their slave-patrol militias independent of the federal government. So,
Madison changed the word “country” to the word “state,” and redrafted the
Second Amendment into today’s form:
“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.”
Little did Madison realize that one day in the future
weapons-manufacturing corporations, newly defined as “persons” by a Supreme
Court some have called dysfunctional, would use his slave patrol militia
amendment to protect their “right” to manufacture and sell assault weapons used
to murder schoolchildren.
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