Revisiting the Original Congressional Debates About the Second Amendment.

• Author: Stevenson, Dru

TABLE OF CONTENTS ABSTRACT 455 TABLE OF CONTENTS 456 I. INTRODUCTION 457 II. BACKGROUND: THE HELLER DISCUSSION 462 III. THE CONGRESSIONAL DEBATES ABOUT THE SECOND AMENDMENT 470 A. Elbridge Gerry (MA) 471 B. James Jackson (GA) 478 C. William Loughton Smith (SC) 481 D. Roger Sherman (CT) 485 E. Jack Vining (DE) 487 F. Michael Jenifer Stone (MD) 489 G. Egbert Benson (NY) 491 H. Elbridge Gerry (Reprise) 494 I. Aedanus Burke (SC) 495 J. Thomas Hartley (PA) 504 IV. POST-VOTE DEBATES ON AUGUST 20 506 A. Thomas Scott (PA) 507 B. Elias Boudinot (NJ) 512 C. The Silence of James Madison (VA) 515 V. REFLECTING ON THE DEBATES: WHAT CAN WE INFER? 516 A. Protecting Individual Rights or Protecting the Militias? 517 B. The Second Amendment and Assumptions About Public Versus 518 Private Ownership of Firearms C. The Colony With No Militia 524 VI. CONCLUSION 528 I. INTRODUCTION

"Not all history is created equal," propounded Justice Thomas recently in a majority opinion for the Court. (1) In context, he was referring to the use of historical evidence in constitutional interpretation, and specifically to the Second Amendment: "The Second Amendment was adopted in 1791; the Fourteenth in 1868," Thomas continued, "Historical evidence that long predates either date may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening years." (2) Fourteen years earlier, in District of Columbia v. Heller, (3) the Court had undertaken an in-depth review of the background history for the Second Amendment; Justice Thomas followed his "not all history is created equal" quip in Bruen with a crucial line from Heller: "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them." (4) In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court doubled down on the history-as-law approach to the Second Amendment that the Court had first taken fourteen years earlier in Heller. (5) Rejecting the lower court's two-step intermediate scrutiny approach in the case, the Court not only took a hard stance on its historical approach, but narrowed the window of historical documents that would receive weight in constitutional analysis. (6) As a consequence of the Bruen Court's history forward reasoning, future Second Amendment cases will turn mostly on historical arguments and evidence, though modern means-and-ends analysis may play some role in the analogical reasoning the Court contemplates.

In the years since Heller, several book-length histories about the Constitutional Convention, (7) the Ratification debates, (8) and the First Congress have appeared, (9) providing richer context and background about each of the representatives who contributed their thoughts about the text of what we know today as the Second Amendment. This Article revisits those debates to develop more context for what the members of Congress actually said, (10) and from there draws new inferences about the original public meaning of the Amendment that can inform courts today as they apply the Court's current rubric to cases challenging state and federal firearm laws.

The Court's originalist methodology may have evolved in the years since Heller, and its current trajectory makes it especially important to revisit a specific part of Second Amendment history--the original congressional debates (only the House debates survive) and the draft version of the Amendment that the House voted to adopt. Over the last two decades, several academic commentators have discussed the comments of one or two of the House members and summarized a few of the others, (11) but only one article predating Heller considered the original debates argument-by-argument. (12)

As acknowledged in Heller, (13) the original congressional debate about the Second Amendment focused on militias and Quakers, or more generally, on religious pacifists as conscientious objectors. (14) The militia issue overlapped with other hot topics in the First Congress--most importantly, whether the federal government would assume the states' unpaid war debts (mostly to militia members for their service) and the relatedly thorny question of how to finance the national defense and national security in the future. Militias and armies touched on the most fundamental political divide of the day: the allocation of power or freedom between the federal and state governments. Most of the academic debate about the historical meaning of the Second Amendment has focused on the militia-or-individual right dichotomy. This dichotomy, however, is misleading because both personal gun ownership and militias overlapped with complicated, pressing policy questions related to the public fisc, taxation, federalism, Native American affairs, westward expansion, and slavery. (15) Of course, regardless of whether someone at the time thought that the second Amendment was about individual self-defense or state militia service, the supply or availability of firearms was part of a set of background assumptions, the lens through which they thought about both self-defense and militias. As twentieth-century novelist L.P. Hartley observed, "The past is a foreign country; they do things differently there." (16)

The most novel contribution of this Article relates to the Quaker part of the discussion, which has been a neglected topic in the literature about the Second Amendment. The First Congress had to confront what I will call "the Quaker Factor" on at least four occasions in its inaugural two years: (1) when it discussed the Second Amendment, (2) a few months later when the Quakers petitioned Congress to end the slave trade and/or abolish slavery, (3) when they debated about the location for the permanent home of Congress, and (4) when Congress considered the first federal Militia Act. (17) A number of the same members of Congress spoke on two or more of these occasions, expressing similar sentiments, so these three other debates about the Quakers shed light on their comments while debating the Second Amendment. (18) Moreover, as evident by occasions when Quakers came up as a point of discussion, the Quaker Factor overlapped with militia issues and the slavery topic. Less well known is that the Quakers posed serious complications for Native American policy (they had friendly relations with tribes that were hostile to other settlers), taxation (Quakers were wealthy and engaged in widespread tax protests related to wars), state war debts owed to veterans (Quakers refused to pay taxes earmarked for veterans' benefits), (19) the gun supply, and westward expansion (Quaker settlers streaming into the new territories). Analyzing or discussing the right to bear arms in isolation from other related issues will inevitably shortchange our understanding of the original public meaning of the Second Amendment and its text.

The Society of Friends (Quakers) emerged amid the political and social upheaval of seventeenth-century England. Apart from the persecution they experienced merely for being part of a non-Anglican sect (something other sects endured as well), (20) the Quakers early on adopted some tenets that made them uniquely unpopular with those in power. They refused to take loyalty oaths (or any oaths), which was problematic in an era of political coups and revolutions, when those who seized power would require loyalty oaths from their constituents. (21) They also eschewed everyday conversation signals that recognized differences in social class. For example, they would not remove their hats in the presence of dignitaries, much less bow or curtsey, and they insisted on using "thee" and "thou" long after the rest of the population started using "you" (singular), when at the time, addressing someone with "thee" or "thou" was considered disrespectful. (22) After their first decade or so, they adopted an official position of pacifism and refused to serve in the military. They further refused to pay tithes to support the Anglican church, which was required by law (basically a tax). (23) Of these, the two tenets that subjected them to the most persecution were the refusal to take oaths (which meant they were automatically suspected of being insurrectionists) and their refusal to pay tithes or religious taxes--even if it meant imprisonment or confiscation of property worth far more than the tax itself--a point that is relevant for understanding their practices during and after the American war of independence.

As the following discussion will show, Quakers not only became the center of discussion when the First Congress debated the Second Amendment, but on other occasions as well. Looking at those discussions together can help our understanding of what the drafters of the Second Amendment hoped to accomplish and what they wanted to prevent, as well as how their constituents--who would ultimately ratify the Amendment--understood its terms.

Part II is a quick review of the exchange between Justice Scalia and Justice Stevens in their respective opinions in Heller about the congressional debates in August 1789 regarding the proposed amendment protecting the right to keep and bear arms. Both Justices made some valid or plausible points, but both also made some mistakes, either misstating or misunderstanding the history. The Bruen opinion did not mention the congressional debates at all, and therefore neither affirmed nor rejected Justice Scalia's assessment in Heller about this specific piece of history. on the other hand, Bruen adopted an approach that much more explicitly relies on history than did Heller, and simultaneously restricts such reliance to a historical period narrower than that embraced or considered in Heller--the period immediately before, during, and after the adoption of the Second Amendment. This narrower, more focused window of time includes the congressional debates about the Amendment and makes those debates a larger component of the relevant history for...