I Hate Having to Write About the Second Amendment, but Here We Go: Starting with Slavery




"Git back onto my property, property!" is a critical part of our national history that we can't ignore.

“Git back onto my property, property!” is a critical and not-to-be-ignored part of our national history  And it’s very relevant to gun control.

The most compelling explanation I’ve seen on the topic of the Second Amendment is that, like much of the Constitution and the Bill of Rights, it was about limiting the power of the federal government over the states, who retained primary authority over “the people” within them.  Unsurprisingly to anyone familiar with the debates of the late 1780s, it turns out to be about slavery.

Yes, the Second Amendment begins with the prefatory “A well regulated Militia, being necessary for the security of a free State,” before getting to the part that “Right to Keep and Bear Arms” (“RKBA”) advocates most want to discuss, that “the right of the people to keep and bear Arms, shall not be infringed.”  (Comma usage during this period was different from what it is now; ignore all but the second comma.)

RKBA opponents key in on the term “well regulated Militia” (use of hyphens and capitalization has changed as well) and point out that people nowadays aren’t part of any formal militia, let alone a well-regulated one.  RKBA advocates counter that the term “militia” referred at the time to all able-bodied men.  And so on.  The key to understanding the Second Amendment, though, lies in the part that is most often overlooked by both sides: what does “being necessary for the security of a free State” mean?  Certainly that will tell you something about what is meant by “well-regulated militia”!

Well, why would an armed citizenry be necessary?  Presumably, to kill people.  We can think of a number of possible objects of the force that could be mustered:

1) A foreign enemy (whether a nation, a territory, or privateers)

2) The federal government itself (or at least its Navy, as the Constitution made no provision for a standing army)

3) One or more other states

4) Its own government, in the event of a popular uprising against the government

5) Its own citizens or residents, in the event of a popular uprising against the government

6) Its own citizens or residents, in the event of something less momentous than such an uprising

Looking at things from the standpoint of the present, we could (and people have) made an argument for any of these six.  However:

#1 would seem unnecessary at the time when states were considered to be sovereign

#2 would seem weird to include in a federal Constitution (and also very much opposed to the spirit of the time, as one prod towards a constitution was events such as the Whiskey Rebellion and Shays Rebellion)

#3 would seem to defeat the purpose of a federal Constitution even more, though it does seem plausible

#4 seems implausible, especially give that this is a state militia we’re talking about

#5 seems unfortunately sort of plausible, but a lot less explicit if that’s what they had in mind, and probably unnecessary as well

#6 seems both unfortunate and unnecessary as well as at odds with much of the rest of the Bill of Right

So none of the possibilities seem particularly satisfying.  Hmmm — maybe the answer lies in what such militias were actually being used for at the time.  And if you were around then, you’d know the right answer, even if it was obscured in the same sort of genteel and shaded language as “the Three-Fifths Clause” and “the Peculiar Institution” and the provision that Congress wouldn’t even discuss a certain topic for thirty years.

7) Militias were used to retrieve runaway slaves — also known as human “property” — which (or let’s say “who”) had a tendency to try to run away to the North to escape their masters.

One problem, though: lots of slaves, not that many actual masters.  But you did have a lot of other able-bodied men around who could protect the property of their social betters!  How could one make them do so, though?

Oh, that’s easy: force them.  States could pass a regulation requiring that able-bodied men be armed (at their own expense) and prepared to ride off to protect the “property” of slaveholders when and as directed.  You see, without this, the physical and economic security of the slaveholding states — which were, of course, “free states” from the perspective of their white citizens — could not necessarily be protected.  Slaves could just leave, not be returned by non-slaveholding states, and there goes the economy (or so went the theory.)  With a well-regulated militia, the security of the free (slave) states could be secured.  (This was the basis of the notorious Fugitive Slave Act.)

#7 is a lot more historically accurate — and obviously high on the agenda of slave states — than #1-6.

To review: the “militias “in question were not to allow the states to have military forces so that they could go to war with one another.  They were designed to suppress insurrection. Why would one need an amendment at all to allow states to exercise their internal police power?  Because the “insurrections” that were of concern here involved slave revolts, slave resistance, and the abetting of both by non-slaves.

Specifically, the concern here was that the federal government would not be empowered to prevent state governments from creating militias — involving small to large groups of people pressed into temporary service — to seek, find, capture, and return to their owners, runaway slaves.  The federal government was not empowered to prevent the slave states from mustering its citizens into a militia, as considered appropriate, for this purpose.

As such, the right belongs to each state to oblige its own people (its citizens, at a minimum) to keep and bear firearms to, essentially, be drafted into service to serve the state’s “need” to protect the human property of slaveholders.

We are so far away from the era of 1787 that it is hard for us to see and appreciate the concerns that drove the founding fathers at the time.  Obviously, it will be hard to adapt the second amendment for modern purposes.  Among other things, this means that the allegation by RKBA opponents that the purpose of the Second Amendment was understood as a collective right for 200 years prior to the D.C. v. Heller decision in 2006 is absurd.  After the Civil War, and especially the Reconstruction Amendments, it should have been completely unclear how the original meaning of the Second Amendment ought to have remained in place.

For one thing, one has to contend with the 13th and 14th amendments which respectively outlaw slavery and, among many other things, impose upon the states the obligation to offer the same protections of individuals rights that are imposed onto the federal government.

In this context, Stevens was wrong in his Heller dissnt that the meaning of the Second Amendment, has been “settled” for two centuries and more.  It was addressing a collective “right” that no longer existed as such.

But, if people actually look at Scalia’s decision in Heller, they may be surprised at its relative modesty.  (The real damage was done in the McDonald v. Chicago decision in 2010, extending the logic of Heller to states and cities.)  By no means does Scalia, in Heller, say that “anything goes.”  He roots the Second Amendment in the common-law right to self-defense of the home.  His decision does not say that any degree or type of firearms is necessarily beyond state regulation, but just that people have an individual right to possess weapons that can be used to protect their home.

The move has been used by critics of Scalia’s vaunted “originalism” to say that Scalia is a hypocrite, doing what he claims in most circumstances to hate.  He found a new “fundamental right” in the Constitution, despite its not being there explicitly.  This is the hallmark of the “living Constitution” school of constitutional interpretation, which says that the Constitution, like pretty much any other bleeding document intended to last more than a short time, is intended to be interpreted in light of changing circumstances and understandings.

The critics are right: Scalia is a hypocrite.  But it does not follow from that that Scalia’s conclusions are wrong.  After decades (even centuries!) of citizens being required by their states (or, after the Civil War, allowed and encouraged by their states) to keep guns in their homes, consistent with longstanding rights under the common law — it is pretty reasonable to presume that people believe and through their actions have ratified the understanding that they have a right to use arms to protect their privacy at home.  It’s similar to the right to reproductive choice (also sought and exercised for a long long time), the right to teach and use a foreign language, the right to travel within the U.S., and all sorts of other rights that aren’t explicitly included in the Constitution — but are nevertheless protected and recognized by the Ninth and Tenth Amendments.

Properly understood, what Scalia reads into the Constitution in Heller is a pretty modest and reasonable restriction on federal and state power. It doesn’t mean a right to own bazookas and flamethrowers.  It doesn’t mean a right to own gigantic caches of automatic or even semi-automatic weapons, although it would seem to allow shotguns kept at home (which are good enough for most home self-defense purposes.)  It does NOT mean a right to an endless supply of any sorts of ammunition including armor-piercing bullets.

It doesn’t necessarily extend beyond the home at all — although a state could decide to extend it on its own — into Concealed Carry or Open Carry or (most absurd) “Stand Your Ground” (when it aint’ your ground) laws.  It means only a reasonable amount, as determined by each state’s legislature, of firepower is allowed to each resident (who hasn’t had their rights removed by law) to allow for home protection. Anything beyond that is arguable, and it’s up to the state to specify.  (Arguably, there’s also a right to hunt non-human prey, but we’ll leave that aside for now.)

It doesn’t limit the ability of the federal government to regulate interstate commerce per the 14th Amendment (which of course also amended the Second.)  It doesn’t limit the ability of any state to prohibit the importation of items that it considers dangerous into its territory, with the exception of such trade in arms and ammunition as is necessary for home protection.  Most of what advocates of weapons control want is still possible so long as it does not infringe on the basis right that if you have a home you have a right to protect it.

Gun-control advocates can live with that sort of compromise understanding of our right – which gives states the power to regulate their citizens’ access to and use of guns as effectively as, say, California does the import of agricultural products from out-of-state that may bring in invasive pests or diseases.

The basis for a reasonable compromise is right there in Scalia’s Heller decision. We opponents of the sort of access to guns that leads to mass slaughters outside of people’s home really can work within Heller’s framework (although parts of McDonald have got to go. That’s the path to resolving the problem of guns and ammo in a constitutional way.  We just have to decide to take that path.

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)