The media has given highly favorable coverage to a new book by Dr. Carol Anderson, chair of Emory University’s Black Studies Department, that argues that “[the Second Amendment] was designed and has consistently been constructed to keep African Americans powerless and vulnerable.”
In interviews with media outlets like CNN and NPR Anderson’s theory is not challenged on the history and purpose of the Second Amendment. Like the contested claims of the “1619” project (which posited that slavery was the motivation for the establishment of the colonies), there might be a reluctance by academics to raise the countervailing historical sources out of fear of being labeled insensitive, defensive, or even racist. However, this is not a new theory and, while there were concerns at the time about slavery and uprisings, the roots of the Second Amendment can be traced largely to England and the fears of government oppression. The point is not to dismiss this consideration for some pro-slavery figures at the time but to put those statements in a more historically grounded and accurate context.
The book, “The Second: Race and Guns in a Fatally Unequal America,” is the latest work of Anderson who previously published “White Rage: The Unspoken Truth of Our Racial Divide.” NPR bills its interview as “Historian Carol Anderson Uncovers The Racist Roots Of The Second Amendment.”
In truth, this is not a new theory and was long preceded by more detailed accounts by figures like Carl Bogus who wrote the 1998 work The Hidden History of the Second Amendment. Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. DAVIS L. REV. 309 (1998); see also Carl T. Bogus, Race, Riots, and Guns, 66 S. CAL. L. REV. 1365 (1993). These works are worth reading as are the writings of my colleague Robert Cottrol (and my former colleague) Ray Diamond. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309 (1991).
Bogus highlighted the quotes used later by Anderson, including a warning by Patrick Henry that the Constitution gave too much power to the federal government in the “common defense” and did not leave enough powers with the states to defend themselves. Bogus asked “What was Henry driving at? In 1788, Americans did not fear foreign invasion. Nor did Americans still harbor the illusion that the militia could effectively contest trained military forces.” His answer was slavery and its preservation.
Slavery was a matter discussed both at the Declaration of Independence and during the Constitutional debates. There were those who were concerned about efforts to abolish slavery as well as slave uprisings. However, the Second Amendment does not appear the result in whole or in large part due to those fears. The right to bear arms was viewed as a bulwark against oppression of citizens by the government. In Northern states where slavery was not as popular, the Second Amendment was an important guarantee against that danger of tyranny. For example, the Pennsylvania Constitution (that preceded the Constitution) included these provisions:
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; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power.
The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times, on the lands they hold, and on all other lands in the United States not enclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein by any laws to be passed by the legislature of the United States.
New Hampshire, New York, Rhode Island and other states had similar precursors to the Second Amendment. The Framers had just overthrown a tyrant and the image of the militia and the famed “Minutemen” remained fixed in the minds of many at the time.
James Madison captured this purpose in in Federalist No. 46 when he noted that a small federal standing army would be opposed by “a militia amounting to near half a million of citizens with arms in their hands” which would be able to defeat a tyrannical standing army. He was highlighting “the advantage of being armed, which the Americans possess over the people of almost every other nation”
Likewise, important contemporary writers at the time connected the Second Amendment to values heavily steeped in the shared history from England. There were also strong cultural and practical value placed on gun ownership, a right that was limited in England. This was still a young country where many lives along the frontier and relied on guns to sustain themselves and their families in terms of both security and sustenance. There was also a deep-seated mistrust of both a standing army and a centralized government.
That is evident in St. George Tucker’s American edition of Blackstone’s Commentaries (1803). In his publication of Blackstone, Tucker added two footnotes that reflected the thinking of many Framers:
[fn40] The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government.
[fn41] Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England. The commentator himself informs us, Vol. II, p. 412, ‘that the prevention of popular insurrections and resistence to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws.’
Tucker later explained this point further:
‘This may be considered as the true palladium of liberty . . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.’
There are a myriad of historical sources expounding on this rationale for the Second Amendment. The Supreme Court has itself highlighted that rationale in its discussions of the history and purpose of the Amendment.
The Anderson book effectively repeats the arguments of Bogus but she offers a far more fluid and casual treatment of the history, as is evident in a recent interview:
…George Mason. Patrick Henry and George Mason really teamed up like tag team taking on the Federalists and the Constitution. What they argued, was that the Constitution put control of the militia under federal control. That meant that Virginia would be left defenseless, as they saw it, when there is an uprising. When there is a slave uprising, that they could not count on the North. They could not count on the federal government and those in Congress to deploy the militia to help out in the midst of a slave revolt.
And they were like, ‘you know, the North detests slavery and we will be left defenseless. I mean, can we really count on those folk?’ and Madison is arguing, ‘look, you got the Atlantic slave trade. Look, you got the three fifths clause. Look, you got the fugitive slave clause, you’re protected.’ And Patrick Henry’s like, ‘No, we are not.’ And so you started seeing the momentum for a new constitutional convention. And that was the last thing James Madison wanted, because he’s like, ‘if these folks get another bite at this, we’re gonna end up with the Articles of Confederation again’.
…
This is the payoff to Patrick Henry and to George Mason. Look, the militia is here. And what it does is it says that the feds cannot interfere with the militia. You are safe to have your militia to defend against slave uprisings. So sitting here in the Bill of Rights, we have an amendment that is about denying Black people their rights.
That is not, in my view, an accurate account of what was said by some of these figures and, more importantly, what was the primary motivation for the Second Amendment.
While I disagree with the analysis and conclusion, I value the discussion of how slavery may have impacted this and other amendments. Slave revolts were a concern in the South and that fear no doubt reinforced the desire to have a guaranteed right to bear arms, particularly for slave holders like Patrick Henry. I simply disagree with the sweeping generalizations and conclusions reached in the book. Moreover, this is not a new theory as suggested in these media accounts. Indeed, the case was made stronger by academics like Bogus and the general subject is presented with far greater depth and understanding by academics like Cottrol and Diamond.
Reprinted with permission from JonathanTurley.org.
