By Professor Carl T. Bogus
Roger Williams University School of Law
as published in the U.C. Davis Law Review

Synopsis

In his recent U.C. Davis Law Review article "The Hidden History of the Second Amendment," Roger Williams University School of Law Professor Carl T. Bogus offers a thesis that could forever change the way Americans view the Second Amendment: James Madison wrote the Second Amendment to assure the southern states that Congress would not undermine the slave system by disarming the militia, which were then the principal instruments of slave control throughout the South.

The story begins in Richmond, Virginia in the summer of 1788. Since it had been proposed by the convention in Philadelphia two years earlier, the Constitution of the United States had been the focus of an intense struggle. By its own terms, the Constitution required ratification by at least nine states; if that were not achieved the United States would not come into being. The Federalists were working hard for ratification, but anti-Federalists were opposing them with equal vigor. Although eight states had ratified the Constitution, most of the remaining states seemed to be leaning the other way, and it was uncertain whether a ninth state would be found. The last and best hope was Virginia, where the Federalists and anti-Federalists were about equally divided.

It was with high drama, therefore, that the Virginia ratifying convention convened in Richmond in June 1788. Madison led the forces for ratification, and as its principal author, no one understood the Constitution better. Yet the opposition was equally formidable. The anti-Federalists were led by George Mason, the most intellectual of the anti-Federalists, and Patrick Henry, who was considered the greatest orator of the day.

Mason and Henry made many arguments against ratification, but one of the strategies they devised was particularly shrewd. Virginia was nearly half black, and the white population lived in constant fear of slave insurrection. The main instrument of control was the militia. So critical was the militia for slave control that, in the main, the southern states refused to commit their militia to the war against the British. The Constitution, however, would transfer the lion's share of the power over the militia to Congress. Slavery was becoming increasingly obnoxious to the North, and southern delegates to the Philadelphia convention demanded and got an agreement, somewhat cryptically written into the Constitution, that deprived the federal government of authority to abolish slavery. Mason and Henry raised the specter of Congress using its authority over the militia to do indirectly what it could not do directly. They suggested that Congress might refuse to call forth the militia to suppress an insurrection, send southern militia to New Hampshire, or�and on this they harped repeatedly�disarm the militia. For Virginia and the South, these were chilling prospects.

The Federalists prevailed, but just barely. Although Virginia ratified the Constitution, Madison limped out of the Richmond Convention. Half of Virginia was still anti-Federalist, and the anti-Federalists were determined to end Madison's political career. Losing a bid to the United States Senate, Madison was reduced to running for a House seat. Patrick Henry had Madison's congressional district gerrymandered to include as many anti-Federalist areas as possible, then recruited a rising young star�James Monroe�to run for the seat.

Monroe campaigned as a champion for a bill of rights. Madison had previously been opposed to a bill of rights, but it was not a popular view. Cognitive dissonance set in, and Madison persuaded himself that he had only been opposed to a bill of rights prior to ratification. He promised the electorate he would support adding a bill of rights to the Constitution.

Madison won the election, and he went to Congress politically committed to supporting a bill of rights. When he drafted that document, he included a provision that with minor modifications became what is now the Second Amendment: "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."

In his 99-page article, Professor Bogus argues that the evidence�including an analysis of Madison's original language, and an understanding of how he and other founders drew on England's Declaration of Rights�strongly suggests that Madison wrote this provision for the specific purpose of assuring his constituency that Congress could not use its newly acquired power to deprive the states of an armed militia. Madison's concern, Professor Bogus argues, was not hunting, self-defense, national defense, or resistance to governmental tyranny�but slave control.

The "hidden history" of the Second Amendment is important for two reasons. First, it supports the view that the amendment does not grant individuals a right to keep and bear arms for their own purposes; rather it only protects the right to bear arms within the militia, as defined within the main body of the Constitution, under the joint control of the federal and state governments. At the time, the southern states extensively regulated their militias and prescribed their slave control responsibilities. Second, the hidden history is important because it fundamentally changes how we think about the right to keep and bear arms. The Second Amendment takes on an entirely different complexion when instead of being symbolized by a musket in the hands of the minutemen, it is associated with a musket in the hands of the slave holder.