The Second Amendment was Adopted to Protect Liberty, Not Slavery: A Reply to Professors Bogus and Anderson

• Date: 01 April 2022

The Second Amendment was Adopted to Protect

Liberty, Not Slavery: A Reply to Professors Bogus

and Anderson

STEPHEN P. HALBROOK*

ABSTRACT

Was the Second Amendment right of the people to bear arms adopted to

protect liberty or to perpetrate slavery? The latter was the thesis first pub-

lished by Professor Carl Bogus in a 1998 law review article “The Hidden

History of the Second Amendment.”His basic argument is that the

Amendment was adopted so that the Southern states could maintain mili-

tias to suppress slave rebellions. New life was given to the thesis by

Professor Carol Anderson in her 2021 book The Second, which asserts

that the Amendment was “not some hallowed ground but rather a bribe,

paid again with Black bodies.”

As Bogus concedes, no direct evidence supports the thesis. Instead, historical

fact refutes it. The predecessor of the Amendment was the English Declaration

of Rights of 1689, which protected the right of Protestants to have arms.

England had no domestic slave population. Beginning in 1776, some states

adopted bills of rights that recognized the right to bear arms. Three of them

were Northern states that had abolished slavery. When the federal Constitution

was proposed in 1787, it was criticized for lacking a bill of rights. Demands for

recognition of the right to bear arms emanated from antifederalists, including

abolitionists, in the Northern states, while several Southern states ratified with-

out demanding amendments at all.

New Hampshire, whose bill of rights was read to abolish slavery, was the first

state to ratify the Constitution and demand a prohibition on the disarming of

citizens. The Virginia ratifying convention followed. While some supported an

amendment stating that the states could maintain militias if Congress neglected

the same, support for the militia was largely tied to rejection of a standing

army, not maintenance of slavery. The right to bear arms was proposed in a

declaration of rights that had nothing to do with slavery. New York ratified

next, also proposing recognition of the arms right.

* J.D., Georgetown University Law Center; Ph.D., Philosophy, Florida State University. Former

Assistant Professor of Philosophy, Tuskegee University, Howard University, and George Mason

University. Attorney at Law, Fairfax, Va.; Senior Fellow, Independent Institute. Argued Printz v. United

States, 521 U.S. 898 (1997), and other Supreme Court cases, and represented a majority of members of

Congress as amici curiae in District of Columbia v. Heller, 554 U.S. 570 (2008). Represents the National

African American Gun Association as amicus curiae before the Supreme Court in New York State Rifle

& Pistol Ass’n v. Bruen, No. 20-843. Books include The Right to Bear Arms: A Constitutional Right of

the People or a Privilege of the Ruling Class?;The Founders’ Second Amendment;Securing Civil

Rights: Freedmen, the Fourteenth Amendment, &the Right to Bear Arms; Firearms Law Deskbook; and

That Every Man be Armed. See www.stephenhalbrook.com. © 2022, Stephen P.Halbrook.

575

James Madison introduced what became the Second Amendment in the first fed-

eral Congress, and it worked its way through both Houses without any hint of

concern for the interests of slavery. Congress rejected the separate structural

amendments that included a proposal for more state powers over the militia.

Rhode Island, the last of the original thirteen states to ratify the Constitution,

demanded both recognition of the right to bear arms and abolition of the slave

trade. Vermont was then admitted as a state—it had abolished slavery and rec-

ognized the right to bear arms in its 1777 Constitution—and it now ratified the

Second Amendment.

Contrary to Bogus, no secret conspiracy was afoot to make “the right of the

people”to bear arms an instrument of slavery. Instead, the abolitionists, and

then the framers of the Fourteenth Amendment, would use those words to show

that “the people”meant just that. African Americans were people and were

thus entitled to all of the rights of Americans. The failure at the Founding was

not that the rights of citizens were accorded to whites, but that these rights were

not accorded to all persons without regard to race. By its very terms, the

Second Amendment is a bulwark for the protection of the fundamental rights of

all of the people.

TABLE OF CONTENTS

INTRODUCTION:A“HISTORY”SO“SECRET”THAT ITWAS NOT

DISCOVERED UNTIL 1998.................................... 577

I. ORIGIN AND TEXT OF THE SECOND AMENDMENT .............. 580

A. The Second Amendment Derived from the English

Declaration of Rights of 1689, Which Plainly Had No

Relevance to Slavery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 580

B. Laws Excluding Slaves from the Rights of “the People”in the

Bill of Rights Did Not Imply that the Guarantees Were

Adopted to Protect Slavery . . . . . . . . . . . . . . . . . . . . . . . . . . 581

II. IMPETUS FOR RECOGNITION OF THE RIGHT TO BEAR ARMS

ORIGINATED FROM THE NORTHERN STATES WHERE SLAVERY WAS

ABOLISHED OR DYING OUT .............................. 584

A. Pennsylvania Becomes the First State to Recognize the Right

to Bear Arms and to Abolish Slavery . . . . . . . . . . . . . . . . . . . 584

B. Massachusetts Recognizes Unalienable Rights, Including the

Right to Bear Arms, and its Courts Declare Slavery

Unconstitutional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586

576 THE GEORGETOWN JOURNAL OF LAW &PUBLIC POLICY [Vol. 20:575

C. Four Southern States Ratify the Constitution Without

Demanding a Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 588

D. New Hampshire Recognizes Unalienable Rights, Which Its

Courts Read to Abolish Slavery, and Demands that the

Federal Constitution Prohibit Disarming Citizens . . . . . . . . . 590

III. THE DOMINOS BEGIN TO FALL ............................ 592

A. Virginia Tips the Scales in Favor of a Bill of Rights . . . . . . . . 592

B. New York Ratifies the Constitution and Demands a Bill of

Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 598

IV. THE SECOND AMENDMENT IN CONGRESS:FROM MADISON’S

PROPOSAL TO ADOPTION ................................ 599

V. HOLDOUTS FOR THE BILL OF RIGHTS ....................... 605

A. North Carolina Waits to Ratify the Constitution Until the

Bill of Rights Is Proposed . . . . . . . . . . . . . . . . . . . . . . . . . . 605

B. Having Abolished Slavery, Rhode Island Demands

Recognition of the Right to Bear Arms and Abolition of the

Slave Traffic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607

C. Vermont Adopts the First Constitution Both to Recognize the

Right to Bear Arms and to Abolish Slavery, and Later Ratifies

the Second Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608

VI. THE AFTERMATH:EXTENDING SECOND AMENDMENT RIGHTS TO

ALL OF “THE PEOPLE,”INCLUDING AFRICAN AMERICANS ........ 610

CONCLUSION:HIDDEN HISTORY–ORNOHISTORY?................. 615

INTRODUCTION:A“HISTORY”SO“SECRET”THAT ITWAS NOT DISCOVERED UNTIL

1998

The Bill of Rights recognizes “the right of the people”“peaceably to assem-

ble,”“to keep and bear arms,”and “to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures.”

1

These rights and others

were denied to African Americans in the slave states at the time of America’s found-

ing. It would take the abolition of slavery and the adoption of the Fourteenth

1. U.S. CONST. amends. I, II, IV.

2022] SECOND AMENDMENT:TOPROTECT LIBERTY,NOT SLAVERY 577