THE HIDDEN HISTORY OF THE SECOND AMENDMENT

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

31 U.C. Davis L. Rev. 309

U.C. Davis Law Review

Winter 1998

Carl T. Bogus

THE HIDDEN HISTORY OF THE SECOND AMENDMENT

Table of Contents

Introduction 311

I. The Hidden History of the Second Amendment322

A. Showdown in Richmond 322

B. Anti-Federalist Strategy 327

C. Southern Fear 328

D. Slave Control 335

E. The Militia 337

F. The Richmond Convention 344

G. Virginia's Proposed Declaration of Rights 354

H. Madison's Political Career 359

I. The Drafting of the Second Amendment 362

J. Legislative History 369

K. The Absence of Direct Evidence 372

II. The Myth of an Anglo-American Right 375

A. Malcolm's Thesis 376

B. The Glorious Revolution 379

C. The Declaration of Rights of 1689 382

III. The Myth of an Insurrectionist Right 386

A. Modern Insurrectionist Theory 386

B. Were the Founders Insurrectionists? 390

IV. The Myth of the Self-Appointed Militia 405

Conclusion 407

*311 For the great enemy of the truth is very often not the lie -- deliberate, contrived, and dishonest -- but the

myth -- persistent, persuasive, and unrealistic. Too often we hold fast to the cliches of our forebears. We subject all

facts to a prefabricated set of interpretations. We enjoy the comfort of opinion without the discomfort of thought.

-John F. Kennedy

Introduction

The Second Amendment is unique. No other constitutional provision has lived so small a life in the law while looming so large

in the realms of policy, politics, and popular culture. Among the Bill of Rights, only the Third Amendment, which prohibits

the quartering of troops in homes, has received less judicial attention.

Annotations of all the cases that have dealt with the

Second Amendment take up a mere ten pages in the United States Code Annotated, compared, for example, to 1452 pages for

First Amendment cases.

In the history of the republic, the United States Supreme Court has handed down only three opinions

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

dealing directly with the Second Amendment,

the last in 1939,

and no federal statute or administrative regulation has ever

been invalidated on Second Amendment grounds.

Based on this lack of activity, one might expect the Second Amendment to be something of a constitutional relic, obscure

*312 and forgotten. That is hardly the case. The right to bear arms is invoked constantly on the political stump, the op-ed

page, the radio talk show, and the floors of Congress.

Politicians of all persuasions consider it essential to pledge fealty to the

right to bear arms, often in extravagant terms.

According to Senator Orrin Hatch, who currently chairs the Senate Judiciary

Committee, the right to bear arms is the “right most valued by free men.”

While most Americans may not consider the right

to bear arms more precious than freedom of speech or religion, few constitutional provisions are more familiar to the public-at-

large. One national poll showed that more Americans know that the Constitution contains a right to bear arms than know that

it guarantees a right to remain silent if accused of crimes.

There can be little doubt that the Second Amendment has a powerful impact on public policy. The United States is the only

industrialized nation in the world in which tens of thousands of citizens are killed or wounded by guns each year.

*313

Consequently, the United States is far and away the leader in criminal homicide in the industrialized world.

Efforts to reduce

handgun violence through legislation is by no means a hopeless cause. Research demonstrates that stringent handgun regulation

can dramatically reduce murder, robbery, and suicide;

yet except for modest legislation, such as the Brady Act,

the United

States neither has nor is seriously considering an effective system for regulating handguns in the United States.

The Second

Amendment is part of the reason that the United States tolerates a level of carnage and terror unparalleled *314 in any other

nation at peace.

The public more or less assumes that the Second Amendment prohibits the kind of gun control regulations

that effectively protect public safety in other countries.

Exactly what the parameters of the right to bear arms are and why the Founders considered it sufficiently important to include

it in the Bill of Rights may seem a mystery shrouded by mists of time. The words of the Second Amendment are familiar to

many Americans: “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.”

Americans have an image of the militia -- minutemen rushing with muskets onto the

greens at Lexington and Concord to fire the “shot heard around the world.”

The fact that colonists were armed helped make

the Revolution possible. Indeed, it was a British plot to confiscate American militia weapons that propelled Paul Revere on his

famous ride.

These images blend with other visions of colonial America. Many believe guns and survival went hand-in-hand

in early America -- that settlers depended upon firearms to defend themselves from Indians, thieves, and wild animals, as well

as to hunt for food.

Some assume that the Founders incorporated the right to bear arms in the Bill of Rights because an armed

citizenry had been important to security in colonial America and essential to throwing off the yoke of British oppression.

Much of this is myth. It is not myth in the sense that the images are wholly divorced from historical truth. Rather, myths can be

powerful and sinister because they blend fact and fiction. *315 Myths do not so much misrepresent as mislead, not so much

concoct as distort. That is the case with the Second Amendment. When the Bill of Rights was adopted, some believed that the

right to bear arms was important to defend and feed citizens and their families or to resist foreign aggression and domestic

tyranny.

But, as this Article will show, that was not the principal reason that the Founders created the Second Amendment.

The story of the Second Amendment is both more complex and more interesting than previously understood. It is a tale of

political struggle, strategy, and intrigue. The Second Amendment's history has been hidden because neither James Madison,

who was the principal author of the Second Amendment, nor those he was attempting to outmaneuver politically, laid their

motives on the table.

Before describing this hidden history, I wish to briefly explain why it is particularly important for scholars and courts to

understand this hidden history and why this history will encounter great resistance. While in the past scholars have not ignored

the Second Amendment quite as much as the courts, even within academic circles it was a reasonably dormant topic. Then

about a decade ago, things changed; suddenly there was an explosion of academic interest in the Second Amendment. The

Second Amendment became the subject of a constant stream of books,

articles,

conferences,

symposia,

and even

entire *316 organizations.

This is not the result of mere chance; it is part of a concerted campaign to persuade the courts to

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

reconsider the Second Amendment, to reject what has long been a judicial consensus, and to adopt a different interpretation --

one that would give the Amendment judicial as well as political vitality and would erect constitutional barriers to gun control

legislation.

The Second Amendment has been the subject of so little judicial activity because courts have unanimously adopted what is

generally referred to as the “collective rights” theory.

According to this view, the Second Amendment grants people a right

to keep and bear arms only within the state-regulated militia. In contrast, those who advocate an “individual rights” theory

believe that the Second Amendment grants individuals a personal right to keep and bear arms. This model has long been

advocated by the firearm industry, shooting organizations, and political libertarians.

However, state

and federal courts

consistently adhered *317 to the collective rights interpretation, and it became clear that further head-on assaults would likely

be counterproductive. The gun lobby apparently decided to suspend efforts to have the courts reconsider the Second Amendment

until a body of secondary authority could be developed to support its position.

For a period of time, legal challenges to gun control legislation studiously avoided the Second Amendment. The challenge

to the Brady Act, for example, was made exclusively on Tenth Amendment grounds.

Meanwhile, the gun lobby pursued

an aggressive campaign to build a body of favorable literature. An arm of the National Rifle Association (“NRA”) dispensed

sizable grants to encourage writing that favored the individual rights model, and even stimulated student articles with a Second

Amendment essay contest.

Gun rights advocates then decided that the project had borne enough fruit to return to the courts.

In an amicus brief asking the Court to grant certiorari and reconsider the right to bear arms in its 1996-97 term, a group calling

itself Academics for the Second Amendment told the Court that thirty-seven of forty-one law review articles addressing the

topic since 1980 endorse the individual rights position.

*318 The bulk of this writing has been produced by a small band of true believers who belong not merely to the individual

rights school of thought but a particular wing commonly called “insurrectionist theory.”

The leader of this band is Stephen

P. Halbrook,

who, with the support of tens of thousands of dollars in NRA grants,

has written no less than two books and

thirteen law review articles advocating this particular theory of the Second Amendment.

Insurrectionist theory is premised

on *319 the idea that the ultimate purpose of an armed citizenry is to be prepared to fight the government itself. Halbrook

believes that “the Second Amendment's framers anticipated a force of the whole armed populace, not a select group, to counter

inroads on freedom by government,”

and that they intended “to guarantee the right of the people to have •their private arms'

to prevent tyranny and to overpower an abusive standing army or select militia.”

Such writings conjure up a romantic image

of the colonial militia: rugged individualists who answer to no one but their own conscience and stand ready to protect their

homes, families, and communities from all manner of threats, both foreign and domestic. Because they serve no master other

than their own sense of patriotism, they cannot be manipulated or commandeered as might a government controlled force.

Because they are armed, they have the means, as well as the will, to resist tyranny.

Despite a surface allure, Halbrook paints a dismal picture. It is animated by a profound mistrust not only for government, but

for constitutional democracy. For Halbrook, all of the constitutional mechanisms ensuring that government power will not be

misused -- the division of power between the federal and state governments, the separation of powers among the three branches

of government, a bicameral legislature, an independent judiciary, freedom of speech and the press, and a civilian Commander

in Chief -- are inadequate.

He is afraid the constitutional structure will fail. When Halbrook speaks of an armed citizenry

as necessary to “counter inroads on freedom by government”

and “prevent tyranny and to overpower an abusive standing

army,”

he is arguing that the constitutionally elected *320 government will itself become the enemy. In short, Halbrook

believes both that the ultimate guarantee of freedom must come from the barrel of a gun and that the Founders believed this

as well.

Insurrectionist theory may be paranoic, anarchistic, and anti-democratic, but it is a theory that has won some important converts.

While, as a general matter, mainstream scholars have only a cold disdain for the work of insurrectionist theorists,

at least

three prominent constitutional scholars -- Sanford Levinson of the University of Texas,

Akhil Reed Amar of Yale,

and

William Van Alstyne of Duke

-- have recently joined the insurrectionist school, giving it a respectability it did not previously

enjoy. “This was a frivolous, crazy position, and it no longer is anymore,” Cass R. Sunstein remarked.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

The campaign to have the Supreme Court reconsider the Second Amendment may be winning converts within the Court *321

as well. In his concurring opinion in Printz v. United States,

Justice Thomas took note of the “growing body of scholarly

commentary” supporting the view that the Second Amendment grants an individual right.

Justice Thomas hinted that he

agrees with the individual rights position and suggested that “(p)erhaps, at some future date, this Court will have the opportunity

to determine” the meaning of the Amendment.

This Article challenges the insurrectionist model. The Second Amendment was not enacted to provide a check on government

tyranny; rather, it was written to assure the Southern states that Congress would not undermine the slave system by using its

newly acquired constitutional authority over the militia to disarm the state militia and thereby destroy the South's principal

instrument of slave control. In effect, the Second Amendment supplemented the slavery compromise made at the Constitutional

Convention in Philadelphia and obliquely codified in other constitutional provisions.

Part I of this Article relates the hidden history of the Second Amendment. In many ways, the story begins in June 1788 at

a convention in Richmond at which Virginia was to decide whether to ratify the Constitution of the United States. However,

before relating the events at Richmond, Part I provides some background involving slavery, slave control, the militia, and the

dynamics of the struggle between the Federalists and anti-Federalists as they headed toward a showdown in Richmond. Part

I then describes political events occurring after Richmond which persuaded Madison to write a bill of rights, including the

provision we now know as the Second Amendment.

Part II of this Article tells a different part of the story, one that occurred a hundred years before Madison wrote the Second

Amendment. Insurrectionist theorists increasingly stress what they call the Anglo-American legacy of the right to keep and bear

arms. They argue that the Second Amendment is a direct descendant of the English Declaration of Rights of 1689, which, they

contend, granted an individual right to have arms as a *322 check on governmental tyranny. Part II focuses on the Declaration

of Rights, placing it and its right to have arms provision in the context of the British “Glorious Revolution.” This Article

does not quarrel with the premise that the Second Amendment was inspired by the Declaration of Rights. On the contrary, it

tries to illuminate the parallels between the two provisions, showing that Madison wrote the Second Amendment to address a

problem analogous to the one faced a century earlier by the authors of the Declaration of Rights. This Article argues that the

insurrectionist interpretation of the Declaration of Rights is fundamentally flawed. An historically sound understanding of the

Second Amendment's English heritage belies the proposition that the Second Amendment was intended to grant an individual

right to keep or bear arms against governmental tyranny. Instead, the Amendment's English heritage provides further support

for the hidden history of the Second Amendment.

Parts III and IV respond to opposing arguments. Modern insurrectionists claim the Founders as their own, offering many

quotes from venerated figures of the early republic that appear to endorse the idea of the right to keep and bear arms against

government tyranny. Part III takes up the question of whether the Founders were insurrectionists. Part IV deals briefly with the

insurrectionists' claim that the word “militia,” as used in the Second Amendment, means a militia composed of all able-bodied,

adult citizens. The Article concludes by offering final thoughts on the implications of the Second Amendment's hidden history.

I. The Hidden History of the Second Amendment

A. Showdown in Richmond

The story of the hidden history of the Second Amendment begins in June 1788 at a convention, held in Richmond, to consider

whether Virginia would ratify the Constitution of the United States. The Constitution had been a controversial document since

its adoption in Philadelphia in September 1787.

*323 Though the Federalists, who favored a stronger federal government,

did not achieve all they desired, they were the perceived victors at the Constitutional Convention.

The anti-Federalists were

now engaged in a campaign to stop the Constitution from being ratified.

The anti-Federalists were skeptical, even bitter, about the ratification process. Some felt that the Philadelphia Convention had

exceeded its authority, that the delegates should have interpreted their charge as one to modify the Articles of Confederation, not

to create a radically different structure.

They were further irritated by the fact that the Constitution would become effective

not by the unanimous consent of the Union's thirteen states but by the ratification of only nine.

Moreover, the state legislatures

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

had been cut out of direct participation in the process; the Constitution would be put before state ratifying conventions rather

than the state legislatures.

From the moment the Convention proposed the Constitution, both sides had been engaged in a struggle over ratification. There

was, of course, a scintillating debate of ideas. John Jay, James Madison, and Alexander Hamilton argued for ratification in a

series of essays published in New York newspapers under the pseudonym “Publius,” which today are collectively known as The

Federalist Papers.

Meanwhile, anti-Federalists wrote essays opposing ratification. Those published under the names *324

“Brutus,”

“Centinel,”

“John Dewitt,”

and “The Federal Farmer”

were among the most prominent.

The battles were not limited to an exchange of ideas, however. This was a no-holds-barred struggle, and the adversaries pressed

every available strategic or tactical advantage. The following example gives a sense of the intensity of the struggle. The day after

delegates to the Philadelphia Convention signed the proposed new Constitution, Federalists sought to have the Pennsylvania

Legislature, which had been meeting upstairs at the Philadelphia State House while the Constitutional Convention was in

session downstairs, vote to convene a ratifying convention in Pennsylvania two months hence.

Lacking the votes to defeat

this proposal, the anti-Federalists sought to block the measure by failing to return after the noon recess, thereby preventing a

quorum.

The legislative session was due to end the next day, and without a quorum there would be considerable delay before

the Pennsylvania Legislature could consider the matter again.

The Federalists, capitalizing on the opportunity to create a

sense of momentum by having Pennsylvania vote to convene a ratifying convention before the ink had dried on the proposed new

Constitution, directed the sergeant of arms to fetch the missing members.

The sergeant located two -- just *325 the number

needed to complete a quorum -- escorted them against their will back to their seats in the State House, and barred the doors

until the assembly voted by a narrow margin to convene a state ratifying convention.

For the anti-Federalists, this incident

became a symbol of a Federalist campaign to steamroll the Constitution to ratification and heightened their resolve to resist.

Nine months later, the fate of the Constitution and, thus, the United States was in doubt. Eight states had ratified the Constitution;

only one more was needed. But there was not another state where ratification was certain or perhaps even likely. Rhode Island

was a sure bet against ratification. So unenthusiastic had it been about a strong Union in which it would have little influence as

a small state, Rhode Island had not even sent delegates to the Philadelphia Convention.

New Hampshire and North Carolina

were also considered likely to oppose ratification.

Though it was perhaps more unpredictable, New York too seemed unlikely

to ratify. New York's Governor George Clinton was opposed to ratification, and forty-six of the sixty-five delegates elected to

the state's ratifying convention were committed anti-Federalists.

*326 This left only Virginia. The stakes were enormous. Not only was Virginia critical as a possible ninth state, but because it

was the largest

and one of the most prosperous and respected states

-- the home of George Washington, Thomas Jefferson,

and James Madison, among others -- it was by no means clear that the United States could succeed without it.

However,

the prospect of Virginia's ratification was uncertain.

Madison would serve as the principal advocate for ratification, and no

one understood the new Constitution better than Madison. Yet the opposition was equally formidable. Virginia's anti-Federalist

delegates included two of the three men who had refused to sign the Constitution in Philadelphia -- George Mason and the

state's eloquent Governor Edmund Randolph

-- as well as Patrick Henry, who was the most famous orator of the day.

*327 B. Anti-Federalist Strategy

The anti-Federalists were prepared to raise any argument that would win votes against ratification.

Their strongest ally was

fear, and they raised a multitude of concerns about the potential calamities under the new Constitution.

Among these was

one topic about which Virginia was already concerned and fearful -- the subject of slavery.

One of Virginia's main concerns was that the federal government would abolish or directly interfere with the slave system.

During the Constitutional Convention, Pierce Butler of South Carolina declared: “The security the Southn. States want is that

their negroes may not be taken from them which some gentlemen within or without doors, have a very good mind to do.”

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

Most believed that question had been settled in Philadelphia. The Southern states had made it plain that they would not join the

Union if emancipation was an open issue and insisted that the Constitution protect the slave system.

Though the Constitution did not do so expressly, it included a number of provisions directly related to slavery. Taken together,

these provisions evidenced an agreement that neither Congress nor the Northern states

would attempt to interfere with

slavery in the South.

Most believed this was sufficient. Charles *328 Pinckney, one of South Carolina's delegates to the

Constitutional Convention, went home and told the state house of representatives:

We have a security that the general government can never emancipate them, for no such authority is granted and

it is admitted, on all hands, that the general government has no powers but what are expressly granted by the

Constitution, and that all rights not expressed were reserved by the several states.

Others wanted this principle expressly included in the Constitution and would soon seize upon the opportunity to include such

a provision in a bill of rights. A little over a year later, for example, William L. Smith of South Carolina wrote a letter urging

adoption of a proposed bill of rights because “if these amendts. are adopted, they will go a great way in preventing Congress

from interfering with our negroes after 20 years . . . . Otherwise, they may even within the 20 years by strained construction

of some power embarrass us very much.”

The dominant view, however, was expressed by Pickney. Pickney believed that

it was sufficiently clear that the new Constitution did not give the federal government any authority that it could legitimately

employ to abolish slavery.

Although the federal government could not abolish slavery directly, however, there were ways in

which it might undermine the slave system indirectly. For the South, this was a terrifying prospect.

C. Southern Fear

When the delegates to the ratifying convention met in Richmond on June 2, 1788, they knew that the Northern states were

increasingly disgusted by slavery. The Revolution had changed *329 everything.

Americans had embraced an ideology

grounded on the premise that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights,

that among these are Life, Liberty, and the Pursuit of Happiness.”

Although some sought to reconcile these beliefs with the

continuation of the slave system,

for many, of course, that was impossible.

From the start, revolutionary rhetoric was turned easily and sharply against the South. “How is it that the loudest yelps for

liberty come from the drivers of slaves?” Dr. Samuel Johnson had asked from England.

When Massachusetts effectively

ended slavery in 1783, it did so in a way that must have been profoundly embarrassing to the slave states. Based on language

in the state constitution quite similar to that in the Declaration of Independence -- “that all men are born free and equal” and

“that every subject is entitled to liberty” -- the Massachusetts Supreme Court held that the state constitution, adopted three years

earlier, effectively abolished slavery.

*330 Abolition fervor was running strongly in the North. Vermont, though not yet recognized as an independent state,

abolished slavery outright in 1777.

Pennsylvania,

Rhode Island,

and New York

had all enacted gradual emancipation

legislation. Some Northerners were not satisfied with gradual methods. Frustrated by the failure to end slavery immediately,

prominent New York citizens formed the New York Society for Promoting the Manumission of Slaves.

The first two

presidents of this group were John Jay and Alexander Hamilton.

The South must have realized that although the Constitution did not grant the federal government the power to abolish slavery,

it did not eliminate the desire to end the slave system. There were many in the North who continued to feel a moral imperative

to bring slavery in America to an end.

100

Many in the South also railed against slavery, among them prominent Virginians

such as Thomas Jefferson

101

and George Mason.

102

*331 But there was a difference. The instinct among Northerners was to

emancipate slaves while Southerners tended to want to deport them.

103

This was not principally due to a more extreme racism

in the South but to a legitimate fear about what would happen if it loosened its tight control over a black population that had

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

long suffered horrible cruelties.

104

Even more chilling than emancipation was the prospect of continuing the slave system but

weakening the white population's control over the slave population.

*332 Southerners, therefore, had to worry that Northerners, whether morally committed to ending slavery or merely indifferent

to the precarious situation in the South, might subvert the slave system indirectly. Even Virginians who wanted to end slavery

had to tremble at such a prospect. Virginia was a state living in perpetual fear.

105

Fully forty-four percent of Virginia's total

population was black,

106

and in some areas, particularly in the eastern part of the state, blacks constituted the majority. Whites

were ever mindful that if the right opportunity presented itself, blacks might cut their heads off.

107

This is not hyperbole. On a

Sunday morning in September 1739, for example, a group of about twenty blacks broke into a store near Stono, South Carolina

for guns and powder.

108

They decapitated the two storekeepers, displayed their heads on the front steps, and then headed South,

sacking and burning homes and killing whites on their way. They marched while flying banners, beating drums, and *333

calling out “Liberty!” to attract more slaves to the rebellion.

109

According to one account, their numbers “increased every

minute by new Negroes coming to them, so that they were above Sixty, some say a hundred.”

110

But for a coincidence, the

rebellion may have grown considerably larger and perhaps even succeeded.

111

By chance, the Lieutenant Governor of South

Carolina rode within eyesight of the rebel group while he was on his way to Charleston with four other men.

112

As best as events can be reconstructed, the Lieutenant Governor raced to the Presbyterian church in Wiltown, which happened

to be in the midst of Sunday services, and assembled a contingent of white planters.

113

By four o'clock in the afternoon,

somewhere between twenty and one hundred armed and mounted militiamen attacked the rebel group. About forty-four blacks

and twenty-one whites died in the ensuing battle.

114

As a warning against future insurrections, the militia decapitated black

rebels and placed their heads “up at every Mile Post they came to.”

115

However, at least thirty blacks escaped.

116

The entire

white population was ordered under arms, and a desperate manhunt was conducted to find the remaining rebels.

117

It was not

until a week later that a militia company located the largest remnant of the insurrectionist band and killed most of the group

in a second battle.

118

Perhaps a half dozen blacks escaped from this second battle,

119

and one of the leaders of the rebellion

was not captured until three years later.

120

Everyone in the South knew the story of the Stono Rebellion; it was the largest and best known of the slave insurrections. It

*334 was not, however, the only slave rebellion. One researcher identified about 250 rebellions or conspiracies involving at

least ten slaves.

121

It is no wonder, therefore, that in a letter he wrote some time after this period, Jefferson worried that the

“day which begins our combustion must be near at hand; and only a single spark is wanting to make that day to-morrow . . . if

something is not done and done soon, we shall be the murderers of our own children.”

122

*335 D. Slave Control

“Slavery was not only an economic and industrial system,” one scholar noted, “but more than that, it was a gigantic police

system.”

123

Over time the South had developed an elaborate system of slave control. The basic instrument of control was the

slave patrol, armed groups of white men who made regular rounds.

124

The patrols made sure that blacks were not wandering

where they did not belong, gathering in groups, or engaging in other suspicious activity.

125

Equally important, however, was

the demonstration of constant vigilance and armed force. The basic strategy was to ensure and impress upon the slaves that

whites were armed, watchful, and ready to respond to insurrectionist activity at all times.

126

The state required white men and

female plantation owners to participate in the patrols and to provide their own arms and equipment, although the rich were

permitted to send white servants in their place.

127

Virginia, South Carolina, and Georgia all had regulated slave patrols.

128

By the mid-eighteenth century, the patrols had become

the responsibility of the militia.

129

Georgia statutes *336 enacted in 1755 and 1757, for example, carefully divided militia

districts into discrete patrol areas and specified when patrols would muster. The Georgia statutes required patrols, under the

direction of commissioned militia officers, to examine every plantation each month and authorized them to search “all Negro

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

Houses for offensive Weapons and Ammunition” and to apprehend and give twenty lashes to any slave found outside plantation

grounds.

130

In the South, therefore, the patrols and the militia were largely synonymous. The Stono Rebellion had been quickly suppressed

because the white men worshiping at the Wiltown Presbyterian church on that Sunday morning had, as required by law, gone

to church armed.

131

Some of the accounts of Stono refer to the body of white men who attacked the black insurrectionists as

the “militia”

132

while others refer to them as “planters.”

133

This is a distinction without a difference; the two groups were one

and the same. Virtually all able-bodied white men were part of the militia, which primarily meant that they had slave control

duties under the direction and discipline of the local militia officers.

134

The militia was the first and last protection from the omnipresent threat of slave insurrection or vengeance.

135

The War for

Independence had placed the South in a precarious position: sending the militia to the war against the British would leave

Southern communities vulnerable to slave insurrection. The Southern states, therefore, often refused to commit their militia to

the Revolution, reserving them instead for slave control.

136

Nor could the South help by sending much in the *337 way of

arms, for rifles were in short supply

137

and necessary to defend against possible slave insurrection.

138

After the war, the militia remained the principal means of protecting the social order and preserving white control over an

enormous black population. Anything that might weaken this system presented the gravest of threats. The South's fear that

the North might destabilize the slave system -- weakening white control over the slave population -- gave anti-Federalists a

powerful weapon.

139

E. The Militia

One more piece of background is necessary before we turn to the events at the Richmond Convention. Much of the discussion at

the Convention concerned the militia. What exactly was the public perception of the militia in 1789? Perhaps more importantly,

what did political leaders -- men such as James Madison, George Mason, Patrick Henry, and the other delegates to the Virginia

ratifying convention -- think of the militia? Specifically, did they believe in a “universal militia,” that is, a militia composed of

all able-bodied, adult, white citizens? An understanding of these issues is necessary to appreciate and perhaps deconstruct the

Richmond debate. In addition, because the Second Amendment connects the right to bear arms to the militia, this background

helps to shed light on Madison's thinking when he ultimately drafted the Amendment.

At the beginning of the American Revolution, the Founders extolled the virtues of the citizen militia, and particularly the

universal militia. Modern insurrectionist theorists fill their writings with samples of this rhetoric. Stephen Halbrook, for *338

example, quotes from a militia plan prepared by George Mason in 1775. Halbrook writes: “In his Fairfax County Militia Plan

•For Embodying the People,' Mason reiterated that •a well regulated Militia, composed of the Gentlemen, Freeholders, and

other Freemen' was necessary to protect •our antient Laws & Liberty' from the standing army.”

140

Halbrook also quotes the

following passage from Patrick Henry's famous “Give me Liberty of Give Me Death” oration:

They tell us . . . that we are weak -- unable to cope with so formidable an adversary. But when shall we be

stronger? . . . Will it be when we are totally disarmed, and when a British guard shall be stationed in every

house? . . . Three million people, armed in the holy cause of liberty . . . are invincible by any force which our

enemy can send against us.

141

It was natural, if not essential, for the leaders of the Revolution to glorify the citizen militia, for they were trying to rally a

people without an army to war. Borrowing heavily from Whig ideology,

142

the revolutionaries sought to persuade themselves

and the community that an army composed of armed citizens -- farmers and tradesmen willing to grab a musket -- would prevail

over professional soldiers and mercenaries in service to King George.

143

And how would these men defeat a better armed,

better equipped, better trained, and more experienced force? They would win because they were virtuous.

144

Their opponents,

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

the Americans told themselves, were corrupt.

145

A standing army was a tool of tyrants, and greed and ambition corrupted

professional soldiers, making them little better than the mercenaries who fought at their side.

146

*339 At first the American belief in the citizen militia seemed justified, at least to the public at large. The Minutemen won

victories at Lexington, Concord, and Bunker Hill.

147

Charles Royster writes: “For militia who were facing regulars, (American

militiamen) showed great willingness and respectable competence in 1775.”

148

Yet even in these early victories, where the

Minutemen enjoyed the advantage of shooting at advancing Redcoats while crouching behind walls, the limitations of the militia

were evident to the trained eye.

149

At the Battle of Bunker Hill, for example, Americans, firing from well-fortified positions

on top of the hill, successfully repulsed two waves of British soldiers foolishly attempting a frontal assault.

150

They inflicted

overwhelming losses on the enemy; some British companies had casualty rates of ninety percent, and every member of the

British commander's personal staff was killed or wounded.

151

Nevertheless, a third attack forced the Americans to retreat,

not because the British had won the upper hand, but because, in the words of Robert Leckie, “a steady trickle of desertions

had drained (the defenders) like a leaking pipe.”

152

Meanwhile, fresh militia troops nearby refused to come forward.

153

One

colonel of the militia said he was too “exhausted” from building fortifications *340 to lead his men to the battle front.

154

Thus, although they publicly celebrated Bunker Hill as a victory and praised the militia,

155

the more astute leaders of the

Revolution realized almost immediately that the militia were not up to the job. Charles Royster writes:

Early in the war some revolutionaries argued that the militia, which had proven its competence at Lexington and

Bunker Hill, could sustain a large part of the resistance to the British. By late 1776 little attachment to this idea

remained . . . . Almost all revolutionaries agreed that a standing army -- no matter how suspect and unwelcome --

was necessary. Every state supported the idea that a Continental Army should bear the main fighting; every state

tried to recruit and supply it; every state preferred to be defended by it.

156

It is not hard to see why the states ultimately supported a standing army. The militia were untrained. “Musters were, after all,

usually held but once a year; parading, drinking, and partying clearly took priority over target practice; and uniforms evoked

far more passion and interest than musket fire,” writes Michael A. Bellesîles.

157

The militia were undisciplined. They fired

their muskets in camp, sometimes shooting at geese, sometimes to start campfires, sometimes at random for fun.

158

“Seldom

a day passes but some persons are shot by their friends,” Washington wrote in 1776.

159

Militiamen drank heavily, sometimes

even drinking themselves into stupors in the midst of battle.

160

Worst of all, militia deserted in droves.

161

Washington wrote

Congress: “The militia . . . are dismayed, intractable and impatient to return home. Great numbers have gone off, in *341 some

instances by whole regiments.”

162

Some left because military life failed to provide sufficient comforts;

163

others fled when

confronting the enemy. The New England militia panicked in the Battle of Long Island;

164

New Jersey's militia surrendered

rather than help defend retreating Continental Army troops;

165

and in the battle of Camden, South Carolina, the North Carolina

and Virginia militia, although outnumbering the British and supported by substantial Continental Army forces, bolted without

firing a single shot.

166

When positioning their forces for battle, American commanders learned to not only place militia units

between regular troops, but to station Continental soldiers behind the militia with orders to shoot the first militiamen to run.

167

Most militiamen were not even good shots.

168

We think of men as having grown up with guns in colonial America.

169

assume they were sharpshooters by necessity. Did not men have to become proficient with muskets to protect themselves from

ruffians and Indians or to hunt to put food on the table? Contrary to myth, the answer, in the main, is no. In reality, few Americans

owned guns.

170

When Michael A. Bellesîles reviewed more than a thousand probate records from frontier areas of northern

New England and western Pennsylvania for the years 1765 to 1790, he found that although the records were so detailed that

they listed items as small as broken cups, only fourteen percent of the household inventories included firearms and *342 fifty-

three percent of those guns were listed as not working.

171

In addition, few Americans hunted. Bellesîles writes: “From the

time of the earliest colonial settlements, frontier families had relied on Indians or professional hunters for wild game, and the

colonial assemblies regulated all forms of hunting, as did Britain's Parliament.”

172

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

“One year's experience convinced most American officials that they needed a standing army to fight the war,” writes Charles

Royster.

173

It was not only American military commanders who learned that the reality of the militia did not correspond to

war rhetoric. The Continental Congress relented and authorized raising an army only after receiving message after message

from Washington explaining in great detail the inadequacies of the militiamen and volunteers.

174

When Patrick Henry, then

Governor of Virginia, informed Washington that the state was unable to fill its quota of regular troops but would send volunteers

to make up the difference, Washington refused the offer. Volunteers were “ungovernable” Washington explained.

175

Even those

who had sung the praises of the militia were reluctantly converted. According to Fawn M. Brodie, Thomas Jefferson's “faith

that the militia could be counted on at least to defend home and family was shattered as time and again the raw troops broke

ranks and ran from seasoned British regulars.”

176

The Founders, therefore, had a different view of the militia after the war than they had when the Revolution began. For many

people, if not most, faith in the universal militia composed of the whole “body of the people” had been shattered. The post-

war attitude is evident in The Federalist Number 29, written by Alexander Hamilton. Hamilton defended the wisdom of placing

the organization and discipline of the militia in the *343 hands of Congress.

177

“What plan for the regulation of the militia

may be pursued by the national government is impossible to be foreseen,” Hamilton wrote.

178

However, were he to deliver his

thoughts on the militia to the federal legislature,

179

he would offer the following views:

The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable

of being carried into execution. A tolerable expertness in military movements is a business that requires time and

practice. It is not a day, nor a week nor even a month, that will suffice for the attainment of it. To oblige the great

body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through

military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would

entitle them to the character of a well-regulated militia, would be real grievance to the people . . . . and would

form an annual deduction from the productive labor of the country to an amount which . . . would not fall far short

of a million pounds . . . . The attention of the government ought particularly to be directed to the formation of a

select corps of moderate size, upon such principles as will really fit it for service in case of need.

180

Although everyone may not have agreed, this was the prevailing view.

181

After what had been learned in the war, it could

not have been otherwise. Politicians continued to make Fourth of July speeches praising the militia. And anti-Federalists had

their reasons for haranguing about how federal control over the *344 militia would destroy a bulwark against tyranny. But in

analyzing the events at the Richmond Convention and beyond, we need to keep both soapbox rhetoric designed to flatter an

audience and the agenda of the anti-Federalists in perspective.

F. The Richmond Convention

The Virginia ratifying convention convened in Richmond on June 2, 1788. The Convention itself was high drama. As Harry

Ammon writes, this was “the most distinguished body ever to assemble in Virginia, numbering among its 173 members the

outstanding leaders of the past generation.”

182

So many spectators showed up that the proceedings were moved from the capitol

to larger facilities nearby.

183

Even before a white audience in the South, matters involving slavery and slave control were

considered sensitive and were often raised in muted and oblique ways. But such matters could never be far from the minds of all

those present at the Richmond Convention. As Conor Cruise O'Brien notes, “even where the word •slavery' was not specifically

mentioned, the fact of slavery must have been subliminally pervasive in the whole debate over ratification.”

184

Patrick Henry and George Mason took the lead for the anti-Federalists. Though he had a reputation as a great orator, Henry

was probably past his prime and tended to ramble.

185

Historians believe that he was an unalterable foe of ratification, and that

he raised any argument that might win votes against ratification.

186

His style was emotional rather than analytical. He would

roam widely, poking at one point and then another, but seldom discussing subjects methodically. It did not take him long to

raise the issue of the militia; he did so in the middle of *345 a long speech on the third day of the Convention. He began by

quoting Article I, Section 8 of the Constitution, which divides authority over the militia between Congress and the states and,

against the wishes of anti-Federalists, gives the lion's share of the power to Congress.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

Let me here call your attention to that part which gives the Congress power • to provide for organizing, arming, and disciplining

the militia, and for governing such part of them as may be employed in the service of the United States -- reserving to the states,

respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by

Congress.' By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline

or arm our militia, they will be useless: the states can do neither -- this power being exclusively given to Congress. The power

of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the

states may, at the pleasure of Congress, be rendered nugatory.

187

What was Henry driving at? In 1788, Americans did not fear foreign invasion.

188

Nor did Americans still harbor the illusion

that the militia could effectively contest trained military forces.

189

As previously discussed, the militia had performed woefully

during the war. Virginia's militia, in particular, had disgraced itself by bolting before firing a single shot in the critical battle of

Camden, South Carolina.

190

The militia were the last and *346 best defense against slave insurrection but practically useless

against a professional army.

Without spelling it out in so many words, Henry was raising the specter of the federal government using Article I, Section 8

powers to subvert the slave system indirectly. He was suggesting that Congress, controlled in the future by an abolitionist North,

might use its constitutional authority to arm the militia to, in effect, disarm them. He did not need to explain this; everyone

in Richmond would have understood this to be the import of his remarks. George Mason took up the same theme on June 14.

He began by adding a new wrinkle:

Mr. Chairman, unless there be some restrictions on the power of calling forth the militia . . . we may very easily

see that it will produce dreadful oppressions. It is extremely unsafe, without some alterations. It would be to use

the militia to a very bad purpose, if any disturbance happened in New Hampshire, to call them from Georgia . . . .

If gentlemen say that the militia of a neighboring state is not sufficient, the government ought to have the power to

call forth those of other states, the most convenient and contiguous. But in this case, the consent of state legislatures

ought to be had. On real emergencies, this consent will never be denied, each state being concerned in the safety of

the rest. This power may be restricted without any danger. I wish such an amendment as this -- that the militia of

any state should not be marched beyond the limits of the adjoining state; and if it be necessary to draw them from

one end of the continent to the other, I wish such a check, as the consent of the state legislature, to be provided.

191

Mason's remarks gave Henry's supposition a different twist. Instead of Congress leaving the state vulnerable by disarming its

militia, George Mason was raising the possibility of Congress simply removing the militia from Virginia. What, he asked, if a

Southern state's militia were marched to New Hampshire?

192

*347 The consequence of such an act was obvious to everyone

in the audience: the state would be unprotected against its slaves. The idea of an insurrection in New Hampshire was not

necessarily farfetched; two years earlier the governor of New Hampshire summoned 2000 militiamen to suppress disturbances

in the state.

193

New Hampshire had restored order, however, without assistance from sister states. The prospect of Congress

ordering militia from the Southern states to deal with disturbances in New England was implausible except, perhaps, to those

profoundly mistrustful of Congress's motives. Henry and Mason were not above stoking the coals of Virginia paranoia. “Virginia

and North Carolina are despised,” Henry told the Richmond Convention at one point.

194

In addition to adding this new possibility, Mason reiterated Henry's supposition of Congress disarming the militia. He told the

Convention:

The militia may be here destroyed by that method which has been practised in other parts of the world before; that

is, by rendering them useless -- by disarming them. Under various pretences, Congress may neglect to provide

for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive

right to arm them, &c.

195

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

Mason went on for some time, suggesting that disarming the militia would be part and parcel of a congressional scheme to

*348 create a standing army, which was something of a non sequitur since the Constitution expressly granted Congress the

power to raise an army and navy.

196

Then he continued:

Why should we not provide against the danger of having our militia, our real and natural strength, destroyed? The

general government ought, at the same time, to have some such power. But we need not give them power to abolish

our militia. If they neglect to arm them, and prescribe proper discipline, they will be of no use. I am not acquainted

with the military profession. I beg to be excused for any errors I may commit with respect to it. But I stand on the

general principles of freedom, whereon I dare to meet any one. I wish that, in case the general government should

neglect to arm and discipline the militia, there should be an express declaration that the state governments might

arm and discipline them. With this single exception, I would agree to this part, as I am conscious the government

ought to have the power.

197

Mason's stories were contradictory. On the one hand, Mason suggested that the Southern militia would be sufficiently sharp

instruments that Congress might employ them to quell insurrections as far away as New England. On the other hand, he suggested

that Congress would cause the militia to atrophy in order to develop political support to raise a standing army. These were

inconsistent visions. Moreover, there was a fundamental flaw in Mason's theory that Congress might deliberately allow the

militia to atrophy in order to use their very frailty to develop political support for a standing army. Rather than creating support

for a standing army, would not weakened militia stimulate demands for reinvigorating the militia themselves?

Madison responded to Mason's concern about a standing army as follows: “The most effectual way to guard against a standing

army, is to render it unnecessary. The most effectual way to render it unnecessary, is to give the general government full power

to call forth the militia, and exert the whole natural strength of the Union, when necessary.”

198

Before the Revolution there had been a great deal of rhetoric about the evils of standing armies. Although borrowed from

*349 Whig ideology, bombast equating standing armies with tyranny had a uniquely American perspective in purpose: the

revolutionaries were building fervor against what was, in essence, a foreign army of occupation. But an American army in

America, raised and controlled by the people's representatives, was another matter. Federalists argued that in a democracy it is

difficult, if not impossible, for a government to use a standing army to impose its will on the people.

199

Moreover, the belief

that a citizen militia could effectively fight against a professional army had been demolished during the war by the militia

themselves.

200

While some anti-Federalists continued to talk about the evils of a standing army, they had lost this argument

in Philadelphia.

However, Mason's main concern was not the creation of a standing army but the preservation of the militia. Mason personally

owned three hundred slaves.

201

He understood the critical role of the militia in preserving the slave system. He knew firsthand

from service at the Philadelphia Convention that the North was not sanguine about the slavery compromise and he could not

help fearing how Congress would exercise its authority over the militia. Mason was simply using every device possible to stoke

the fires of fear, fear his audience certainly shared.

Patrick Henry was even more direct. He drew the audience's attention to the section of the Constitution that provides that no

state may, without the consent of Congress, “engage in War, unless actually invaded,”

202

and asked: “If you give this clause a

fair construction, what is the true meaning of it? What does this relate to?”

203

Henry answered this question as follows:

Not domestic insurrections, but war. If the country be invaded, a state may go to war, but cannot suppress

insurrections. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They

cannot, therefore, suppress it without the interposition of Congress . . . . Congress, and Congress only, can call

forth the militia.

204

*350 If members of the audience were previously uncertain about the meaning of Mason and Henry's warning, this had made

it plain. Congress might want to leave the South defenseless against its slaves.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

The Federalists did their best to respond to the suggestions that the federal government would, in one way or another, render

the militia impotent as a slave control device. They sought to show, for example, that Mason's proposal for a constitutional

amendment that would prohibit Congress from sending the militia beyond the borders of an adjoining state without the consent

of the state legislature would itself imperil the South. A Federalist delegate named Wilson Nicholas addressed Mason's proposal

as follows:

Who will be most likely to want the aid of the militia? The Southern States, from their situation. Who are the most

likely to be called for? The Eastern States, from their strength, &c. Should we put it in the power of the particular

states to refuse the militia, it ought to operate against ourselves.

205

Madison also addressed Mason's concern that Congress could march Georgia's militia to New Hampshire: “There is something

so preposterous, and so full of mischief, in the idea of dragging the militia unnecessarily from one end of the continent to the

other, that I think there can be no ground of apprehension.”

206

And Madison responded to the argument that only Congress

could arm the militia, “I cannot conceive that this Constitution, by giving the general government the power of arming the

militia, takes it away from the state governments. The power is concurrent, and not exclusive.”

207

*351 Madison blundered by arguing that the power to arm the militia was concurrent. John Marshall avoided this pitfall later

in the Convention when he said simply: “If Congress neglect our militia we can arm ourselves. Cannot Virginia import arms?

Cannot she put them into the hands of her militia-men?”

208

However, instead of putting the matter in practical terms such

as these, Madison suggested that even though the Constitution gave Congress the authority to arm the militia, the states also

possessed a constitutional power to arm the militia. This position is difficult, if not impossible, to maintain. Though he generally

could not spar with Madison on a technical level, Patrick Henry saw an opportunity and seized it. When Madison sat down,

Henry rose and ridiculed Madison's argument:

As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power

of •arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the

United States.' To the state legislatures is given the power of •appointing the officers, and training the militia according to the

discipline prescribed by Congress.' I observed before, that, if the power be concurrent as to arming them, it is concurrent in

other respects. If the states have the right of arming them, &c., concurrently, Congress has a concurrent power of appointing

the officers, and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will

carry you into endless absurdity -- that Congress has nothing exclusive on the one hand, nor the states on the other.

209

Henry proceeded for some time to further demonstrate the absurdity of implied concurrent powers. Then Henry made the

following point:

When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust

to chance . . . . If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to

amend it? Or, in other words, to say that Congress shall not arm or *352 discipline them, till the states shall have

refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied.

210

What was Madison thinking at this juncture? Henry had suggested that all he wanted was this one modest and

reasonable change in the Constitution, to allow the states to arm the militia if the federal government failed to do

so. Henry's real objective, of course, was to destroy rather than reform the Constitution. Besides kicking himself

for handing Henry an oratorical weapon, Madison may well have been thinking that Henry's point had merit --

the states ought to have a concurrent authority to arm their militia. What harm would there be in it, especially if

it would relieve some of the anti-Federalist paranoia about Congress emasculating the militia? Two years later

Madison would write the Second Amendment, which has essentially the same effect as the provision that Henry

claimed to be advocating.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

In one of his last speeches in the final days of the Convention, Patrick Henry raised the question of slavery in so direct a fashion

that he appears to have violated the mores of that time and place. “In this state there are two hundred and thirty-six thousand

blacks, and there are many in several other states. But there are few or none in the Northern States,”

211

he began. He suggested

that under its power to provide for the general defense, Congress might enlist blacks in the army and then emancipate them.

“Slavery is detested,” he explained.

212

In a moment he continued:

(T)hey will search that paper, and see if they have power of manumission. And have they not, sir? Have they

not power to provide for the general defence and welfare? May they not think that these call for the abolition

of slavery? May they not pronounce all slaves free, and will they not be warranted by that power? This is

no ambiguous implication or logical deduction. The paper speaks to the point: they have the power in clear,

unequivocal terms, and will clearly and certainly exercise it.

213

*353 He sought to drive home the point that Congress would inevitably attempt to abolish slavery. “(A) decided majority of

states have not the ties of sympathy and fellow-feeling for those whose interest would be affected by their emancipation. The

majority of Congress is to the north, and the slaves are to the south.”

214

Jack N. Rakove of Stanford University suggests Henry's speech may have been a mark of desperation.

215

The tide was

apparently now running in the Federalists' direction. Based on his own head count, Madison had privately calculated that

the Federalists had a small majority of between three and four delegates.

216

Henry's speech probably did the anti-Federalist

cause more harm than good. He weakened his point by overstating it; whatever implied powers one might claim to find, the

Constitution did not in “clear, unequivocal terms” grant Congress the power of emancipation. “I was struck with surprise when

I heard him express himself alarmed with respect to the emancipation of slaves,” Madison responded shortly thereafter.

217

“There is no power to warrant it, in that paper. If there be, I know it not.”

218

Although Madison's argument may have been

persuasive and, on the whole, reassuring, it may also have heightened Southern anxiety. If the federal government found the

slave system so obnoxious but lacked the constitutional authority to attack it directly, it might look for ways to undermine the

system indirectly.

As the Convention reached its final days, the anti-Federalists increasingly criticized the absence of a bill of rights. Some believe

that this was their most persuasive argument.

219

Their strategy was to ask the Convention to declare that the Constitution should

be ratified, but only after a bill of rights had been included. Madison and the Federalists adopted a counter-strategy. They did

not oppose a bill of rights in principle, but argued that failure to ratify the Constitution until the states had all agreed on a bill of

rights would lead to chaos.

220

Madison argued *354 that if the anti-Federalists were right when they asserted that the desire

for a bill of rights was strong everywhere, then there will be little difficulty adding one through the amendment process.

221

The anti-Federalists submitted a resolution stating that it was the “opinion” of the Convention that the Constitution ought to

be ratified, but that the states should first consider a bill of rights proposed by the Virginia Convention.

222

The Federalists

submitted a resolution to ratify the Constitution and appoint a committee to draft a proposed bill of rights that the Convention

would recommend for subsequent adoption.

223

The anti-Federalist resolution came to a vote first, and was defeated by a vote

of eighty to eighty-eight. Then, on a second vote, the Federalist resolution carried eighty-nine to seventy-nine.

G. Virginia's Proposed Declaration of Rights

The Richmond Convention was not quite done. A twenty member committee had been appointed to draft a recommended bill of

rights. The committee included George Mason and Patrick Henry, as well as John Madison, John Marshall, and James Monroe.

The opportunity to write a recommended bill of rights was all the anti-Federalists had left. Naturally, they wanted a strong and

elaborate document, one that would restrict the power of the federal government as much a possible. The proposed bill of rights

would be a different matter for the Federalists. They had won. The Convention had ratified the Constitution unequivocally;

the recommended bill of rights would be a document without legal effect. The work of the committee was anti-climatic.

224

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

For the Federalists, and particularly for politicians such as Madison, this was a political opportunity. Since Virginia was nearly

evenly divided between Federalist and anti-Federalists, it made sense to assuage the feelings of the *355 defeated. Thus,

despite the fact that the committee's proposed declaration of rights contained twenty provisions in addition to twenty proposed

amendments to the Constitution, many of which would have been highly controversial if taken seriously, the Convention passed

the committee's documents unanimously and without recorded debate.

225

The committee recommended forty separate provisions, a “declaration or bill of rights” consisting of twenty provisions and

twenty amendments to the Constitution, four relating to the right to bear arms or the militia. The seventeenth and nineteenth

provisions in Virginia's proposed Declaration of Rights stated:

17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people

trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to

liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in

all cases, the military should be under strict subordination to, and governed by, the civil power.

. . . .

19th. That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ

another to bear arms in his stead.

226

The two proposed constitutional amendments relevant to the militia were as follows:

9th. That no standing army, or regular troops, shall be raised, or kept up, in time of peace, without the consent to two thirds

of the members present, in both houses.

. . . .

11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia,

whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except

when in actual service, in time of war, invasion, or rebellion; and when not in the actual service of the United *356 States,

shall be subject only to such fines, penalties, and punishments, as shall be directed or inflicted by the laws of its own state.

227

Advocates of the individual rights theory of the Second Amendment tend to attach great significance to Virginia's proposed

Declaration of Rights. This is a mistake. The passionate debate over ratification that culminated in the vote of eighty to eighty-

nine was followed, without debate, by a unanimous vote for a long list of proposed rights and amendments to the Constitution.

The Declaration of Rights did not so much represent the sense of the Richmond Convention as a cathartic exercise for the

defeated anti-Federalists.

In one sense, the right to bear arms provisions in the Declaration of Rights were standard anti-Federalist fare. They were rhetoric

recycled from newspaper articles and from speeches made and rejected at the Constitutional Convention in Philadelphia.

228

The issue of whether Congress should have the authority to raise a standing army, for example, was exhumed after having been

laid to rest in Philadelphia. Including this issue in a list of proposed constitutional amendments may have been emotionally

gratifying to the defeated anti-Federalists, but it is doubtful many expected the issue to be reopened. In another sense, however,

the Declaration's right to bear arm provisions represented something new.

The Virginia Bill of Rights, which had been adopted in 1776 and was still in effect, did not contain a right to bear arms

provision.

229

The principal author of that document was none other than George Mason.

230

Why did Mason and the Richmond

delegates attach greater significance to a right to bear *357 arms in 1788 than in 1776? Mason and Henry had raised the specter

of the national government undermining the slave system by disarming the state militia, and although they had failed to stop

ratification, they had persuaded many Virginians, and perhaps even themselves, that this was a real concern.

The structure and language of the Declaration of Rights provide further evidence that the right to bear arms was linked to

the militia. Both concepts are incorporated in the same provision. Moreover, the phrase “to bear arms” was a term of art that

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

meant participating in military affairs, not merely carrying weapons. As Garry Wills put it: “(O)ne does not bear arms against

a rabbit.”

231

This is not to say that the concept of a right to bear arms originated in Richmond. It did not. Four of the thirteen state constitutions

adopted between the signing of the Declaration of Independence in 1776 and the ratification of the Constitution in 1789 contained

a right to bear arms provision.

232

As Part II discusses, the English Declaration of Rights of 1689 contained a right to have

arms provision. Nor were the concerns raised at Richmond unique to Virginia. Fears about whether the federal government

would attempt to destroy the slave system were voiced at the ratifying conventions in the other Southern states,

233

as were

apprehensions about federal control over the *358 militia.

234

But it was at Richmond that concerns about slave control and

federal authority over the militia were united, producing a new rationale for a right to bear arms.

*359 H. Madison's Political Career

The anti-Federalists had been defeated twice: first at the Constitutional Convention in Philadelphia, and again in the battle

to prevent ratification. Virginia's ratification was a watershed. As Irving Brant noted: “Virginia's ratification, following New

Hampshire's,

235

not only built the state total to ten, but added overpowering weight to the new system. Rejection by any state

would mean blockaded isolation.”

236

The steam went out of the opposition at the convention in Poughkeepsie, New York,

237

and New York ratified the Constitution on July 26.

238

*360 Yet the anti-Federalists refused to give up. Their new strategy

was two-fold. First, they planned to try to convene a second constitutional convention to consider a bill of rights, which they

hoped would constrict the power of the federal government. Second, they planned to send as many anti-Federalists to Congress

as possible.

239

Intent on sending two anti-Federalists to the United States Senate from Virginia, Patrick Henry employed the Machiavellian

strategy of supporting Madison for a seat in the old Congress to keep Madison out of Virginia.

240

Then, in Madison's absence,

Henry sought to elect anti-Federalists Richard Henry Lee and William Grayson to the United States Senate.

241

Henry was still

a powerful figure. Even Washington was in awe of his political prowess in the Virginia Legislature. “He has only to say let

this be law, and it is law,” Washington remarked.

242

When the Senate election took place in the Virginia Legislature, Henry

pulled no punches. He openly questioned Madison's character, and stated that Madison's election to the Senate would produce

“rivulets of blood throughout the land.”

243

Henry was successful; Madison lost to Lee and Grayson.

244

In an age when politicians preferred to portray themselves as statesmen who were reluctantly drafted for public office, Madison

had to scramble to win a seat in the House of Representatives.

245

Henry sought to slam this door closed as well. With the

specific purpose of keeping Madison out of Congress altogether, Henry gerrymandered the congressional districts so that *361

Madison's home county was lumped into a district strong in anti-Federalist sentiment. In addition, he ensured legislation was

enacted to confine candidates to the district in which they resided.

246

Madison's political career hung by a thread. Though reluctant at first, he threw himself into a vigorous campaign for Congress.

His opponent James Monroe was a formidable candidate

247

who was promoted as a champion of a bill of rights.

248

Here,

Madison was vulnerable. Madison had not supported a bill of rights in either Philadelphia or Richmond -- he strongly believed in

structural rather than rights based checks on the arbitrary will of the majority

249

-- and yet he was now standing for election in

a congressional district in which a bill of rights was widely popular. Cognitive dissonance set in.

250

In a long letter to Jefferson

on October 17, 1788, Madison wrestled with his views on a bill of rights.

251

“My own opinion has always been *362 in

favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration,” Madison

wrote.

252

His heart was not in it; the arguments Madison set out against a bill of rights were more vigorously expressed than

those he listed in its favor.

253

Nevertheless, the deed was done. From this time forth, Madison campaigned as a supporter of a

bill of rights, promising that if elected he would feel “bound by the strongest motives” to work to append a bill of rights to the

Constitution.

254

Madison ultimately prevailed in his campaign for a seat in the House of Representatives, defeating Monroe

by a comfortable majority.

255

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

I. The Drafting of the Second Amendment

How personally committed Madison became to a bill of rights is unknown, but after his election to Congress in February 1789,

he was at least politically committed.

256

Moreover, Madison was *363 determined not to allow the anti-Federalists to use a bill

of rights as an excuse to call a second constitutional convention at which any part of the Constitution might be reconsidered. The

anti-Federalists persuaded New York to send a letter to the governors of the thirteen states calling for a “general convention” to

consider amendments to the Constitution.

257

In addition, North Carolina refused to ratify the Constitution until Congress called

a second constitutional convention.

258

Madison was intent that the process of drafting a bill of rights not be used to unravel the

carefully woven fabric of the republic.

259

To preempt this mischief, and to fulfill his commitment to his constituents, Madison

propelled himself forward as the prime mover of a bill of rights.

There are a few rights that Madison considered of special importance, or “the great rights” as he called them. These rights

included trial by jury, freedom of the press, and “liberty of conscience.”

260

He was especially concerned with religious

liberty.

261

But how did Madison decide what other rights to enshrine in the Constitution? It was not an easy task, especially for a

man who was at best profoundly skeptical of the wisdom of a *364 bill of rights.

262

Eighteenth century America reverberated

with a cacophony of proclaimed rights. The thirteen state constitutions

263

collectively contained a total of more than four

hundred separate provisions, what Gordon S. Wood calls “a jarring but exciting combination of ringing declarations of universal

principles with a motley collection of common law procedures.”

264

But for the events at Richmond, it is doubtful that Madison would have included a right to bear arms in his proposed list of

rights. Only four of the thirteen state constitutions -- Massachusetts, North Carolina, Pennsylvania, and Vermont -- contained a

right to bear arms provision. Moreover, these documents were divided on the scope of the right. The Massachusetts and North

Carolina declarations of rights guaranteed a collective right only; they spoke, respectively, of a right to bear arms “for the

common defence”

265

or “for the defence of the State.”

266

The declarations of rights of Pennsylvania

267

and Vermont,

268

on the other hand, guaranteed citizens a right to bear arms “for *365 the defence of themselves and the State.”

269

Thus,

over two-thirds of the state constitutions did not contain a right to bear arms, and the minority was divided on the essential

purpose of such a right. There is little reason to believe that, in rummaging among a collection of more than four hundred

different provisions, Madison would have selected one embraced by a small and divided minority of states. In addition, five

states and North Carolina, which remained outside the Union pending Congress's consideration of amendments, had transmitted

to Congress proposed bills of rights and other constitutional amendments.

270

Neither of the two documents adopted before the

Richmond Convention contained a right to bear arms.

271

New Hampshire, which held its ratifying convention simultaneously

with Virginia, proposed that “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.”

272

But New Hampshire was the only state to suggest a right to bear arms that was not connected to the militia. New York's proposal

was substantially similar to Virginia's,

273

and with the exception of inconsequential differences in the placement of commas,

North Carolina adopted Virginia's right to bear arms provision verbatim.

274

The proposed bills of rights were, of course, largely

anti-Federalist documents.

On June 8, 1789, Madison submitted a resolution proposing a list of nine multi-part constitutional amendments that, if *366

adopted, would integrate a bill of rights into the main body of the Constitution.

275

He included a right to bear arms provision

that read:

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being

the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to

render military service in person.

276

We do not know why Madison chose to draft his provision precisely this way. He did not explain his thinking in any speech or

letter that has come to light. Only by examining Madison's drafting choices can we hope to understand his objective.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

Madison's provision clearly tracks item seventeen in Virginia's proposed Declaration of Rights.

277

Most significantly, like

Virginia's provision (and unlike New Hampshire's),

278

Madison's provision connected the right to bear arms to the militia.

However, Madison made a number of significant changes to Virginia's language.

In comparing Madison's proposal to the Virginia model from which he was working,

279

the first obvious difference is structure.

Virginia's provision begins by declaring that “the people have a right to keep and bear arms.”

280

This is a simple sentence

consisting of a subject (“the people”), verb (“have”), and *367 object (“a right to keep and bear arms”). The verb is in the

active voice and stated affirmatively. Although the meaning of the words may be open to interpretation, this much is clear:

Virginia's provision purports to grant a right, regardless of whether one previously existed. But Madison elected not to use

Virginia's language. He wrote a different sentence. The implied subject of Madison's sentence is the federal government. The

verb, translated from Madison's passive voice into the active voice, is “shall not infringe.” The object of Madison's sentence

(“The right of the people to keep and bear arms”) begins with the specifying article “the” rather than the generalizing article

“a” used in Virginia's proposal (“a right to keep and bear arms”).

With strong and clear language available to him, why did Madison use a patently weaker structure? Madison's thinking about

constitutional issues was both precise and nuanced, and we must be sensitive to even subtle connotations in his language.

Madison was inclined to protect rights by limiting the power of government, and his drafting may reflect this preference. But

it appears that something else may be here as well, and perhaps it is this: Madison's language does not so much grant a right

as acknowledge that one exists and protect that right, whatever it may be, from being infringed by the federal government.

Madison may have been suggesting that one must look outside the amendment -- to state or common law perhaps -- for the

definition of this right.

Far more clear is Madison's reason for deleting Virginia's description of the militia as being “composed of the body of the

people trained to arms.” Madison knew that Virginia's provision would substantively change the Constitution. Article I, Section

8 gives Congress the power to “provide for organizing” the militia,

281

which implicitly includes the power to decide the

composition of the militia.

282

This was a controversial matter. Anti-Federalists *368 opposed congressional control of the

militia. Moreover, they favored “general” rather than “select” militia. That is, they believed that the militia should be drawn

from the entire community, or, more precisely, from all adult, able-bodied, white males, rather than only individuals well suited

and well trained for militia service.

283

The Federalists wanted Congress to have authority to organize the militia as it saw

fit, and they prevailed at the Constitutional Convention. Virginia's provision included a back door attempt to incorporate into

the Constitution an endorsement of the general militia. Madison, choosing not to limit Congress's authority to determine the

composition of the militia, deleted the offending phrase.

Madison changed another phrase as well. Virginia's proposal states that the militia is “the proper, natural and safe defence of

a free State.”

284

Madison changed this to “the best security of a free country.”

285

His use of the word “country” rather than

“state” reflects his Federalist inclination to emphasize the national government. Particularly relevant for our purposes, however,

is Madison's substitution of “security” for “defence.” Political rhetoric notwithstanding, no one who understood the recent

history of the Revolutionary War considered the militia the best defense against foreign invasion.

286

As a Virginian, Madison

knew that the militia's prime function in his state, and throughout the South, was slave control. His use of the word “security”

is consistent with his writing the amendment for the specific purpose of assuring the Southern states, and particularly his

constituents in Virginia, that the federal government would not undermine their security against slave insurrection by disarming

the militia.

Finally, it is important to note that Madison retained the exemption in Virginia's proposed Declaration of Rights for persons

“religiously scrupulous of bearing arms.”

287

Madison's inclusion of this provision establishes that he did not believe the right

belonged to individuals themselves. Rather, Madison was *369 addressing what he perceived to be not merely a right, but an

obligation to keep and bear arms, that would necessarily be subject to governmental regulation. Madison passionately believed

in religious liberty and “rights of conscience,”

288

and he wanted to protect Quakers and others from being compelled to violate

their faith. Significant for our purposes, however, is that Madison was writing an amendment to set limits on federal control

over the militia. In other words, he sought to prohibit the federal government from compelling Quakers to bear arms in the

militia, as well as to prohibit the federal government from disarming the militia.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

All of these actions -- Madison's structure of the amendment, his refusal to define the militia as “composed of the body of the

people trained to arms,” his substitution of the phrase “security of a free state” for “defence of a free state,” and his retention

of the exemption for those with religious objection to bearing arms -- are consistent with the thesis that Madison's objective

in writing the Second Amendment was not to grant an individual right but to set limits on congressional power. Specifically,

Madison sought to assure that Congress's power to arm the militia would not be used to disarm the militia. In a sense, Madison

wrote the amendment that Patrick Henry claimed to want during the ratification debate in Richmond. That is, Madison's draft

of the Second Amendment made the power to arm the militia concurrent rather than exclusive to the federal government.

J. Legislative History

The recorded legislative history is sparse indeed. No notes were made of Senate debates,

289

and notes of the House proceedings

are incomplete.

290

There is, therefore, little that illuminates why Madison's draft ultimately emerged into the form finally

proposed by Congress and transmitted to the states on September 28, 1789. We know that the House inserted “composed of the

body of the people”

291

and that the Senate *370 removed the phrase.

292

We know that the House committee changed “free

country” to “free State,”

293

and that the Senate changed “being the best security of a free State” to “necessary to the security

of a free state.” But the only recorded debate about the right to bear arms concerned whether persons should be exempted for

religious reasons.

In debate on the floor of the House, Elbridge Gerry, the prominent anti-Federalist from Massachusetts who was one of the

three delegates who refused to sign the Constitution at the Philadelphia Convention, complained that “congress could take

such measures with respect to a militia, as to make a standing army.” However, when challenged as to what precisely he was

advocating, Gerry stated that he wanted to confine the exemption to “persons belonging to a religious sect, scrupulous of bearing

arms.”

294

Following brief discussion, the House declined to take any action on this point. The entire phrase was later deleted

by the Senate. A motion by Gerry to insert the phrase “trained to arms” after “militia” failed for want of second.

295

It is difficult to glean much from this sparse congressional history. From what little history exists, it appears that most of the

attention was focused on other amendments. In any event, Madison's proposed amendment was changed in two respects. First,

the religious exemption was deleted. Second, the two remaining clauses were reversed and separated by a coma rather than a

semi-colon, thereby tightening the connection between the militia and the right to keep and bear arms. With the exception of

these changes, the provision finally adopted by Congress and ratified by the states is essentially identical to the one proposed

by Madison.

296

*371 Madison's colleagues in the House and Senate almost certainly considered the Second Amendment to be part of the

slavery compromise. Many members of the First Congress had been delegates to the Constitutional Convention in Philadelphia

and were well aware that without the slavery compromise it would have been impossible to include both the Northern and

slave holding states in a common Union. The Southern delegates had made it clear that there was no point in even drafting a

constitution if the federal government had the power to abolish slavery. “The true question at present is whether the Southn.

States shall or shall not be parties to the union,” John Rutledge of South Carolina had told them.

297

From that point on the

delegates worked mightily to produce a constitution palatable to both North and South.

298

The carefully negotiated compromise

was reflected in (1) the fugitive slave provision, requiring that runaway slaves escaping across state lines be returned to their

owners;

299

(2) the provision prohibiting Congress from abolishing the African slave trade until 1808 or imposing an import

tax of more than ten dollars per slave;

300

and (3) provisions counting slaves as three-fifths of free persons for the purposes

of apportioning congressional representation and direct taxation.

301

In effect, Madison proposed that the slavery compromise

be supplemented by another constitutional provision prohibiting Congress from emasculating the South's primary instrument

of slave control, and Congress acceded to that request.

302

*372 K. The Absence of Direct Evidence

The evidence that the Second Amendment was written to assure the South that the federal government would not disarm its

militia is, I suggest, considerable. However, the evidence is almost entirely circumstantial.

303

Madison never expressly stated

that he wrote the Second Amendment for that purpose. If the thesis is sound, why is no direct evidence to be found supporting it?

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

There are a number of possible answers to that question. The most important concerns the genesis of the Amendment. It

originated in a political struggle, one in which the combatants attempted to use issues for their own purposes. Mason and Henry

fanned the flames of Southern paranoia to manipulate the ratifying Convention, and Madison later became a fire fighter to

protect both the Constitution and his own political career. These were games of masquerade and innuendo. No one's purpose

was served by laying cards upon the table. The history of the Second Amendment was hidden by design.

This, however, may not be the only reason for the absence of direct evidence. Another reason is that the available records

are woefully incomplete. No notes whatever were made of the Senate's debate in the First Congress, and the stenographer for

the House of Representatives was a drunkard whose mind often wandered for long periods of time during which he filled the

journals with doodles and sketches instead of the remarks of the members.

304

Similar problems plague the transcripts of the

Virginia ratifying convention.

305

In fact, after reviewing transcripts *373 of the state ratifying conventions, Elbridge Gerry

said that he found them “generally partial and mutilated.”

306

It is therefore possible that express statements were made but

no longer survive.

Another reason for the absence of more explicit statements concerning the true purpose behind the Second Amendment is that the

slave comprise and slave control were sensitive topics. Although the Founders incorporated the terms of the slavery compromise

into the Constitution, they did so obliquely. The words “slaves” or “slavery” do not appear anywhere in the document.

307

“The

delegates carefully chose language designed to make the Constitution more palatable to the North,”

308

even going so far as to

employ “inscrutable language that the people could not readily understand,” Paul Finkleman writes.

309

Indeed, the Founders

themselves admitted to this deception.

310

The politics over winning Northern support for the Constitution, and later the Bill of Rights, was undoubtedly a large part of the

reason slavery is not expressly mentioned in those documents. However, there may have been more to it than that. Bargaining

over slavery produced a sense of shame on both sides.

311

Northerners felt shame for becoming complicit in the slave system.

For Southerners, the issue was more complex and confused, but even staunch defenders of the system struggled with a sense of

disgrace.

312

It seems de rigueur for Southern *374 politicians, even those who were themselves large slave holders, to preface

remarks about slavery with statements of how personally repugnant the institution of slavery was to them.

313

Politicians of the

time, from both North and South, avoided the subject of slavery as much as possible.

314

It cannot be overemphasized that slavery was the central feature of life in the slave holding states, and that the South depended

on arms and the militia to protect itself against the *375 constant danger of a slave revolt. It is true that in eighteenth century

America there was a great deal of soapbox rhetoric about freedom and the right to keep and bear arms, much as there is today.

Nevertheless, by virtue of their daily circumstance, Southerners had to be infinitely more concerned about slave control than

abstract, ideological, or contingent beliefs about liberty and guns. Much of the rhetoric about guns and liberty was probably both

bravado and smokescreen -- a defense mechanism, if you will, to emphasize the importance of being armed without unveiling

the ever present dread of having one's throat slit in the night. Northern statesmen understood this. As Madison noted, everyone

recognized that slavery produced a great division between the Northern and Southern states.

315

It would have been injudicious,

to say the least, for Northern politicians to rub Southern noses in cold realities. One would not expect frank discussions about

the consequences of an unarmed militia, but rather a tacit collaboration to leave unsaid what everyone so clearly understood.

These factors may have combined. That is, to the extent that express statements about slave control were made at ratifying

conventions in the South or later in the First Congress, stenographers may have considered it both politic and convenient

to abbreviate or omit those remarks. Clearly it would have been unwise to acknowledge the possibility that Congress might

undermine the slave system by disarming the militia and then fail to foreclose this possibility by constitutional amendment.

II. The Myth of an Anglo-American Right

The events at the Richmond ratifying convention in June 1788 provided the impetus for embodying a right to bear arms in the

Bill of Rights. However, the concept of such a right did not *376 originate in Richmond. Madison and the Founders borrowed

more than they created. A right to have arms provision was contained in the English Declaration of Rights of 1689, a document

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

considered part and parcel of the English Constitution. Although the English Declaration of Rights is not directly part of the

American experience, it is nevertheless an integral part of the story of the Second Amendment. The Founders were intimately

familiar with the Declaration and its history. Indeed, the Declaration and its history helps illuminate the Founders' thinking

about a right to bear arms, and specifically the purpose of such a right.

A. Malcolm's Thesis

One of the stars in the constellation of insurrectionist right theorists is Joyce Lee Malcolm, a professor of history at Bentley

College in Massachusetts. In 1994, Malcolm published a book entitled To Keep and Bear Arms: The Origins of an Anglo-

American Right,

316

which has become something of a cult classic. Praised by fellow insurrectionists as “the definitive historical

treatise on the right to arms”

317

and ballyhooed in publications such as the NRA's American Rifleman,

318

Malcolm's book

was so unexpectedly popular that it went into a third printing within a year of its initial publication.

319

Within the gun rights

community at least, Malcolm's name has been associated with the proposition that the right of the individual to keep and

bear arms was part of English constitutional law for a hundred years before the *377 Founders drafted the American Bill of

Rights.

320

The Second Amendment is, in Malcolm's words, “a legacy of the English Bill of Rights.”

321

Malcolm's thesis is that the Second Amendment was derived from the English Declaration of Rights, also known as the Bill

of Rights, of 1689. With this, there is no quarrel. But Malcolm goes further. She argues that the Declaration of Rights granted

an individual right, that is, that it gave individuals the right to keep and bear arms notwithstanding the enactment of any laws

to the contrary. She also argues that the purpose of this right was to allow individuals “to have arms for self-defence and self-

preservation.”

322

With these last two propositions, Malcolm stands on shaky ground. In fact, it may not be too extreme to say

that she is patently wrong.

Malcolm concedes that until 1689 there was no individual right to keep and bear arms in England.

323

Indeed, she spends more

than a hundred pages describing all manner of governmental restrictions on the ownership of guns and weapons including: a

1541 law prohibiting persons with incomes of less than a hundred pounds a year from owning handguns;

324

instructions issued

to the militia in 1655 to confiscate all arms and ammunition from strangers and to store all weapons, including those belonging

to militia members themselves, in safe *378 places;

325

measures enacted in 1659 requiring the inventorying of all arms and

ammunition in private hands

326

and the disarming of anyone of “suspected or knowne disaffection” to the government;

327

and the adoption of a firearm registration system in 1660.

328

If she is to succeed in her argument that the Declaration of

Rights granted an individual right, therefore, Malcolm must argue that the Bill of Rights of 1689 created a new right, one

that did not previously exist in England. It is at this point that Malcolm enters dangerous terrain. Leading English historians

emphasize that when Parliament

329

presented William of Orange with the Declaration of Rights, all agreed that no new rights

were being created.

330

William was acknowledging and agreeing to abide by pre-existing principles, nothing more. Indeed, the

Declaration itself described the rights *379 listed as “antient rights.”

331

This, however, is only the beginning of Malcolm's

radical departure from accepted history.

B. The Glorious Revolution

A short description of what the English refer to as the Glorious Revolution

332

is necessary to put the Declaration of Rights

into historical context. On February 16, 1685, King Charles II died unexpectedly. He left no legitimate heir and was succeeded

by his brother James.

333

Although James II was popular at first, as time went on he became despised both by the people and

Parliament. In the words of one historian, “James II was rigid, proud, single-minded and self-centered.”

334

And that was not

the worst of it. James was also Catholic, having secretly converted in 1673. The King was the Supreme Governor of the Church

of England,

335

and James promised Parliament he would defend and support the Church of England.

336

Nevertheless, spurred

on by his devoutly Roman Catholic Queen, James sought to restore Catholicism in England.

337

During the reign of Charles II, Parliament had enacted the Test Acts, which forbade the King from appointing Catholics

to positions of high civil or military office, and disqualified Catholics from membership in Parliament.

338

Indeed, James's

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

conversion to Catholicism had come to light when this legislation was enacted. James had shocked the nation by resigning his

position as the Lord High Admiral rather than taking sacrament according to rites of the Church of England.

339

Now, as King,

James opened a Catholic chapel in London, surrounded himself with Catholic advisers, and began appointing Catholics to the

Privy Council, the faculties of Oxford and Cambridge, and, most disturbing of all, as officers in his rapidly expanding army.

340

*380 James dealt with the inevitable public outcry over his violation of the Test Acts by arranging a case challenging his

appointment of Catholic military officers. The case would come before the Court of King's Bench, but only after he packed

the court with judges who would do his bidding.

341

The court held that the King of England was a sovereign prince, that “the

laws of England are the king's laws,” and that the King could therefore dispense with the law “in particular cases and upon

particular necessary reasons” as he saw fit.

342

Catholics were detested and feared in late seventeenth century England.

343

There were constant rumors of Catholic plots and

outrages. In 1666, for example, a terrible fire destroyed most of London, which many believed had been set by Catholics.

344

Following the Great Fire, as the English called it, and again after a public panic known as the Popish and the Rye House plots,

Charles II ordered that weapons in the hands of Catholics and dissident Protestants be seized.

345

Now, it seemed that James II

was trying to turn the tables. Not only was he expanding the army under the direction of Catholic officers, but he was working

strenuously to reduce all weapons in private hands,

346

which of course meant mostly Protestant hands.

All of this was political madness; Catholics comprised less than ten percent of the English population, and probably no more

than two percent.

347

Undeterred, James finally pushed things to the breaking point. In May 1688, he issued a Declaration of

Indulgence granting freedom of worship to Catholics and Protestant dissidents, abolishing the Test Acts, and ordering bishops

throughout the realm to have the Declaration read during church services on two consecutive Sundays.

348

When six *381

bishops and the Archbishop of Canterbury refused, James had them arrested and imprisoned in the Tower of London.

The following month, the Queen gave birth to a son.

349

Instead of merely tolerating a Catholic king for the rest of his life,

England was now faced with the prospect of a line of Catholic kings. Seven prominent Englishmen promptly sent a secret letter

to William of Orange inviting him to invade England, and promising him the overwhelming support of the English people

if he did. William, the Stadtholder of Holland, was married to James' sister, Mary.

350

As the principal force challenging the

expansionism of Louis XIV, the Catholic king of France, William was the champion of Protestantism on the continent. While

this letter was en route to William, James, frustrated with its refusal to repeal the Test Acts, dissolved Parliament.

351

Flying under the banner of English colors emblazoned with the motto “the Protestant Religion and the Liberties of England,”

William set sail for England with the Dutch fleet.

352

James, learning of the danger, asked Louis XIV for help. Although Louis

promised to send the French fleet to intercept William, this did not come to pass.

353

On November 15, William landed at

Torbay with a considerable force and began marching toward London. James set forth with his army to meet him. The people,

both common folk and gentry, rallied to William's cause. Plagued by desertions, including the desertion of one of his most

trusted commanders, James fled with his family to France. On his way he burned writs convening Parliament in December and,

because Parliament could not lawfully be convened unless summoned by writs impressed with the Great Seal, James threw the

Great Seal into the Thames River.

354

Crowds in London stormed Catholic chapels, and the *382 mayor ordered that searches

for weapons be conducted and that all Catholics be disarmed.

355

William arrived in London on December 28. Since Parliament could not lawfully be convened, the House of Lords met

informally and advised William to summon a convention. In effect, the Convention was a parliament meeting under a different

name.

356

The Convention and William engaged in friendly negotiations as to the terms under which the Convention would

offer, and William would accept, the Crown. William imposed the condition that he would rule as King or not at all, rejecting a

suggestion that Mary, as James's rightful successor, would be sole sovereign and that William would rule as her consort. It was

agreed that William and Mary would be joint sovereigns but that William would administer the kingdom.

357

C. The Declaration of Rights of 1689

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

The Convention had some conditions of its own.

358

The Convention, one must remember, was Parliament, or as close a

surrogate for Parliament as could be convened under the circumstances.

359

As such, the Convention was concerned with

parliamentary prerogatives. It wanted to resolve matters involving the allocation of power between King and Parliament. James

II had not recognized Parliament's authority to make law. He had, for example, violated the Test Acts, and the court had supported

him. “(T)he laws of England are the king's laws,” the court had declared.

360

Most relevant to our concerns, James had sought

to disarm Protestants, notwithstanding Parliament's laws prescribing who could possess weapons, what weapons they could

possess, and under what conditions they could possess them.

361

*383 Thus, as a condition for making him King, the Convention wanted William to acknowledge Parliament's authority to

make law and to agree to abide by those laws within prescribed areas.

362

Therefore, the Declaration of Rights provided, for

example, that “(t)he pretended power of suspending of laws or the execution of laws by regal authority without consent of

Parliament is illegal”

363

and that “levying money for or to the use of the crown by pretense of prerogative without grant of

Parliament for longer time or in other manner than the same is or shall be granted is illegal.”

364

The right to have arms provision

is very much in the same vein. That is, it speaks to a right of Parliament vis-á-vis the crown rather than a right of the individual

vis-á-vis the state.

365

That provision reads in full: “That the subjects which are Protestants may have arms for their defence

suitable to their condition and as allowed by law.”

366

*384 Malcolm says that she finds it “difficult to decide what to make of the new clauses tacked to the end of the article •suitable

to their conditions and as allowed by law.”'

367

It cannot be the phrase “suitable to their condition” that gives her difficulty.

She notes that “(f)or generations citizens had been required to contribute arms to the militia according to their condition, that

is, according to their rank and income.”

368

Therefore, it must be the second phrase, “and as allowed by law,” that perplexes

Malcom. The question here, quite simply is: who makes the law? Obviously, the parties did not intend the Crown to determine

what arms Protestants could possess. The provision was written in response to James's attempt to arrogate this power to himself;

its purpose was to restrict the Crown's authority. There are only two other possible sources of law: Parliament and common law.

As Malcolm concedes, there was no individual right to have arms in England before 1689,

369

and, therefore, no such right had

been recognized by common law. This leaves Parliament, which had been regulating the ownership of arms for five hundred

years, as Malcolm herself catalogues.

370

Thus, the Declaration of Rights, which became the Bill of Rights when Parliament

enacted it by statute after William and Mary signed it,

371

did not give Protestants an individual right to have arms; it decreed

that Parliament, and not the Crown, would determine the right of Protestants to have arms.

372

According to Lois G. Schwoerer of George Washington University, the House of Lords added the clauses “suitable to their

condition” and “as allowed by law” to make it clear that all Protestants did not enjoy a right to have arms.

373

Schwoerer

explains:

*385 First, the idea that all Protestants should be permitted to posses a gun surely terrified the upper House . . . .

The potential dangers to property and life from permitting all Protestants to have a weapon were self-evident.

Second, the right to possess arms had always been closely connected with the subjects' military obligations, which,

since the twelfth century, had been equated with subjects' socioeconomic status . . . . Theoretically, not every

person was supposed to have weapons and serve in the military. Third, for over 150 years, other legislation had

restricted the possession of guns and other weapons to well-to-do-persons . . . . Fourth, the peers' amendments

almost certainly drew inspiration from the game laws, which, since the fourteenth century, had preserved the

hunting privileges of the king and the upper classes by restricting the possession of weapons to the wealthy.

374

“The right to be armed has not worn well,” writes Malcolm.

375

“It is no longer a right of Englishmen,” she continues. “The

curious will still find it in the English Bill of Rights, but it has been so gently teased from public use that most Britons have no

notion of when or how it came to be withdrawn.”

376

Did some sinister force destroy a fundamental right “so gently” that all

of England failed to notice? Hardly. The Declaration of Rights was a critical event in English history because it represented a

transfer of power from Crown to Parliament. It remains a fundamental aspect of the English system that the law “sets no limits

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

to the power of Parliament.”

377

During more than three hundred years of changing circumstances since 1689, Parliament has

been determining what arms Protestants and other British subjects may possess.

None of this precludes the possibility that one hundred years later the American Founders had come to believe in an individual

right to keep and bear arms. It does mean, however, that the Founders did not derive such a view from the Declaration of

Rights. They understood the Glorious Revolution,

378

saw their *386 own revolution as a parallel endeavor,

379

and, in some

instances, modeled the American Bill of Rights on the English Declaration of Rights of 1689.

380

With the most minor of

changes, for example, Madison copied article 10 of the Declaration verbatim, where it now stands as the Eighth Amendment

to the United States Constitution.

381

Although he did not take it quite so directly, Madison was almost certainly influenced

by the right to have arms provision of the Declaration as well. The similarity of circumstance could not have been lost on him.

In 1689, Parliament needed to address the fear that Protestants might be disarmed and left defenseless against Catholics. In

1789, Madison needed to allay the fear that the militia might be disarmed, leaving whites defenseless against blacks. Madison

followed Parliament's solution. Both the Declaration and the Second Amendment resolve the problem by transferring the power

to disarm the favored group (Protestants and the militia) from the distrusted arm of government (the Crown and Congress) to

a more trusted authority (Parliament and the states).

III. The Myth of an Insurrectionist Right

A. Modern Insurrectionist Theory

Timothy J. McVeigh understands insurrectionist theory. When he was arrested hours after bombing the Alfred P. Murrah Federal

Building in Oklahoma City, McVeigh was wearing a tee shirt emblazoned with the words and pictures of two of the most

venerated figures in American history.

382

On the front was *387 Abraham Lincoln who, more than any other American,

symbolizes the permanence and strength of the Union and the federal government. Lincoln was portrayed on a wanted poster.

Under his picture were the words that John Wilkes Booth shouted as he leapt to the stage in Ford's Theater: “Sic Semper

Tyrannis.”

383

On the back of the shirt was a tree with droplets of blood instead of leaves and the words of Thomas Jefferson:

“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”

384

These were not the only

epigrams McVeigh liked. During the siege at the Branch Davidian compound, McVeigh traveled to Waco to sell bumper

stickers.

385

One sticker said: “Fear the Government That Fears Your Gun.” Another read: “Ban Guns. Make the Streets Safe

for a Government Takeover.” These slogans capture insurrectionist theory perfectly. The ultimate check on government tyranny

is an armed citizenry, and citizens have the right to keep and bear arms so that they can resist the government when it falls

into the hands of traitors or tyrants.

386

Although insurrectionist theory has always represented one strand of American political thought, its great surge of strength is

relatively recent. It started to grow in the late 1960s, and acquired important institutional support when Second Amendment

hard liners seized control of the NRA in 1977.

387

What *388 accounts for the rise of insurrectionism? Sociologist James

William Gibson tells us that American cultural mythology has always been torn between two images. The first is that of the

soldier who defends the nation as part of an official force. The other is that of the warrior who acts alone.

388

The first figure

was portrayed by actors such as John Wayne and Gary Cooper when playing Western sheriffs or World War II soldiers.

389

The second figure was represented by figures such as Daniel Boone and Davy Crockett who, as Gibson puts it, are “men of

great bravery and virtue who live on the frontier and fight on behalf of civilization, but who themselves never desire to live

in the domesticated interior of society.”

390

Gibson traces a metamorphosis in the second figure since the end of the Vietnam War. The new hero is a paramilitary warrior

who is hostile to the police or the government because he realizes that “the official power structure is unwilling to fight even

though the enemy threatens to destroy America and the values it represents.”

391

This archetype was first portrayed by Sylvester

Stallone as Rambo,

392

Charles Bronson in Death Wish,

393

and Arnold Schwartzeneggar in Commando.

394

The new hero

fought in a new frontier: a borderland of decadence and chaos on the perimeter of a decaying society. Society is decaying because

of the incompetence or corruption of governmental officials as well as plots by “evil ones” -- drug lords, terrorists, malevolent

space aliens, or shadowy dark forces -- who “can only be satisfied by the collapse of social stability and all moral values.”

395

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

Increasingly, film portrays chaos as overwhelming society, as illustrated *389 by Dirty Harry,

396

Waterworld,

397

Twelve

Monkeys,

398

and the Terminator,

399

Alien,

400

and Road Warrior series.

401

These two legends, society's soldier versus the paramilitary renegade, may help explain the historical tension between the

individual and collective rights visions of the Second Amendment. And the same force responsible for the proliferation of

paramilitary warriors in popular culture may be electrifying insurrectionism. Certainly the core themes are the same: a sense of

rising chaos, a deep mistrust of lawful authority, faith in the disciplined but renegade gunman. The problem with this system

of ideas is that it breeds a profound distrust of not only government but of representative democracy. It undermines respect for

constitutional institutions and processes, replacing it with faith in a mythical judgment of “the people.” These are dangerous

ideas. It is lynch mobs, men in hoods, and people like Timothy McVeigh who deputize themselves in the name of the people.

One is reminded of Justice Jackson's statement: “The choice is not between order and liberty. It is between liberty with order

and anarchy without either. There is danger that if the Court does not temper its doctrinaire logic with a little practical wisdom,

it will convert the constitutional Bill of Rights into a suicide pact.”

402

*390 Sanford Levinson is worried about insurrectionism corresponding with anarchy. “I am not an anarchist,” he writes.

403

Nevertheless, he argues, the Founders were insurrectionists. It was the Founders who proclaimed it is “the Right of the People

to alter or to abolish”

404

government by armed revolution when necessary; and, whether we like it not, the Founders enacted

the Second Amendment to ensure the people had not only the right but the ability to resist government tyranny.

405

Taking

rights seriously means that we must honor and preserve rights even when there is a significant social cost in doing so, Levinson

argues.

406

There is no doubt that the Founders were revolutionaries, but whether they were insurrectionists is another matter.

B. Were the Founders Insurrectionists?

Conor Cruise O'Brien

407

argues that Thomas Jefferson ought to be ejected from the pantheon of venerated Founders of

the republic.

408

His reason is two-pronged: Jefferson was a virulent racist, even by the standards of seventeenth century

Virginia,

409

and Jefferson was an insurrectionist.

410

O'Brien worries that Jefferson will give aid and comfort to the

contemporary radical militia movement. “(I)f this movement prospers -- as I fear it may in the coming century,” he writes,

“then it will develop its own intellectuals, its own ideologies, and its own press, and *391 these are certain to seek and find

legitimation for their revolution -- including its excesses -- in the writings of Thomas Jefferson.”

411

Jefferson wrote the phrase that appears on Timothy McVeigh's tee shirt

412

in a letter to William Stephens Smith in 1787Smith in

1787.

413

Smith, the son-in-law to two of Jefferson's dearest friends, John and Abigail Adams, was a confidant of Jefferson.

414

Jefferson was commenting on Shays's Rebellion, then underway in Massachusetts, and expressing views that he was careful

not to make to a statesman friend such as Madison.

415

Shays's Rebellion provides an acid test for insurrectionist sympathies,

and a brief description is in order.

Daniel Shays was a veteran of the Continental Army who had fought at Lexington, Bunker Hill, and Saratoga.

416

After the

war, Shays returned to western Massachusetts where, along with many small farmers, shopkeepers, and hired hands, he found

himself hailed into court by creditors.

417

The war had ruptured commercial relationships. British exporters were no longer

shipping goods to America on credit, and were demanding that existing debts be paid in hard currency.

418

To raise money to

pay these debts and stay in business, American wholesalers demanded the payment of all debts by retailers. Retailers, in turn,

demanded payment of outstanding debts in hard currency by farmers, many of whom had been accustomed to paying debts

with crops.

419

The supply of hard currency was not equal to the demand. An economic crisis ensued, pitting creditors against

debtors. In the Court of Common Pleas of Hampshire County *392 Massachusetts, where Shays lived, nearly 3000 debt cases

were instituted from August 1784 to August 1786.

420

Rhode Island was alleviating the crisis by issuing, and allowing debts to be paid in, depreciated paper currency. In Massachusetts,

however, creditors were in control.

421

Debts had to be paid in hard money, and the courts were executing judgments by

foreclosing on land, seizing animals and crops, and even throwing debtors in jail.

422

In addition, the legislature raised taxes,

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

even while the new state constitution increased property qualifications for voting and holding office.

423

This was a bitter pill

for people who had gone to war under the slogan, “No taxation without representation.” Armed men began demanding the

courts adjourn. The local militia was called out to defend the courts, but when a thousand armed men responded, 800 men lined

up with those seeking to stop the court from sitting.

424

The crowd freed debtors held in the local jail.

425

When word got out

that the state supreme court would meet in Springfield to indict leaders of this insurrection, Daniel Shays led 700 armed farmers

and Continental Army veterans to Springfield, where they paraded menacingly through the streets.

426

Shays's ranks swelled

as men from the countryside joined his cause.

A second revolution was in the making. Just as patriots had thrown British tea into Boston harbor,

427

just as they had marched

with their muskets onto the greens at Lexington and Concord,

428

now they were rallying to resist oppression once more. The

Massachusetts legislature enacted a Riot Act to put an end to armed mobs.

429

Skirmishes broke out. Leading a *393 group

of 1000 armed men, Shays began marching on Boston.

430

Massachusetts raised an army to meet him.

431

Jefferson found this bracing. In his letter to William Stephens Smith, written while he was serving as ambassador to France,

Jefferson said:

What country before ever existed a century and half without a rebellion? And what country can preserve it's

liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let

them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives

lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and

tyrants. It is it's natural manure.

432

About nine months earlier Jefferson had made similar noises in a letter to Madison. “I am impatient to learn your sentiments

on the late troubles in the Eastern states,” he began.

433

“So far as I have yet seen, they do not appear to threaten serious

consequences,” he continued.

434

“Malo periculosam, libertatem quam quietam servitutem (I would rather have a disturbed

liberty than a quiet slavery) . . . . I hold it that a little rebellion now and then is a good thing, and as necessary in the political

world as storms in the physical.”

435

Madison was not of a similar mind, as Jefferson would soon learn. In Congress, Madison

was advocating enlisting troops to help Massachusetts quell the rebellion.

436

The “internal enemies” in Massachusetts were

threatening “the tranquility of the Union,” he said.

437

Jefferson learned of Madison's views when he received a letter that

Madison had sent before receiving Jefferson's “a little rebellion now and then *394 is a good thing” letter. In his letter, Madison

called the rebellion “treason.”

438

Jefferson did not raise Shays's Rebellion in his correspondence with Madison again.

439

Jefferson was in Paris when he wrote to Madison and Smith about Shays's Rebellion, and his views on the subject were as far

removed from those of his fellow Founders as was his geography. Although Jefferson had been away only three years when

he wrote those letters, that short span of time was a critical period in the life of America and its Founders.

440

Revolutionaries

had turned into nation builders. Washington was shocked and dismayed by Shays's Rebellion.

441

“(M)ankind, when left to

themselves, are unfit for their own government,” he declared in a particularly black moment.

442

In a more reflective mood,

Washington wrote: “(L)et the reins of government then be braced and held with a steady hand, and every violation of the

constitution be reprehended: if defective let it be amended, but not suffered to be trampled upon whilst it has an existence.”

443

Hamilton believed Shays's Rebellion demonstrated that “a certain portion of military force is absolutely necessary in large

communities.”

444

Franklin spoke of Shays's Rebellion in a letter he sent Jefferson in April 1786.

445

“The insurgents in the

Massachusetts are quelled,” Franklin wrote, “and I believe a great majority of that people approve the measures of government

in reducing them.”

446

John Marshall feared for the future of the young nation. “These violent, I fear bloody, dissensions in a

state I had thought inferior in wisdom and virtue to no one in the union,” he wrote, “cast a deep shade over the bright *395

prospect which the revolution in America and the establishment of our free government had opened to the votaries of liberty

throughout the globe.”

447

John Jay felt the same way.

448

So did Samuel Adams,

449

Rufus King,

450

and ultimately even anti-

Federalist Elbridge Gerry.

451

John Hancock was elected governor of Massachusetts to deal with the crisis, and he dispatched

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

the state's troops with instructions to “kill, slay, and destroy if necessary, and conquer by all fitting ways, enterprises, and means

whatsoever, all and every one of the rebels.”

452

Certainly the changed circumstances were, in part, responsible for this abhorrence of insurrection. But only in part. With few

exceptions, the Founders were never insurrectionists in the sense that they believed the people should take matters into their

own hands by force of arms. Garry Wills notes that even as late as 1775 John Adams denied that the Continental Congress was

engaging in rebellion.

453

“(T)he people of this continent have the utmost abhorrence of treason and rebellion,” he said.

454

Wills explains that the Founders took great care to stress that they were engaged in “revolution,” not rebellion. They associated

the word revolution, derived from astronomy, with ordered and prescribed movement and considered themselves engaged in

an orderly and legally justified endeavor.

455

And Gordon S. Wood notes that the Founders repeatedly stressed that American

resistance was supported by “both the letter and the spirit of the British constitution.”

456

Insurrectionist theory is generally assembled by cobbling together a wide assortment of statements by admired personages.

Little effort is made to put those statements in context or *396 connect them to the drafting, proposing, or ratifying of the

Second Amendment. It is enough if the statements were made by one of the Founders or by someone generally admired by the

Founders. Jefferson is the prime example. Jefferson was both a Founder of the republic and an insurrectionist, but that does

not mean the Founders as a whole were insurrectionists. As they themselves were acutely aware,

457

the Founders were of

different minds on many different matters. Jefferson's insurrectionism is irrelevant to the Second Amendment for at least two

reasons: Jefferson's views on this subject were not shared by the Founders generally, and Jefferson was not involved in drafting,

proposing, or ratifying the Second Amendment.

Another example is Sir William Blackstone's famous Commentaries. Blackstone's Commentaries are frequently cited by Stephen

P. Halbrook,

458

Joyce Lee Malcolm,

459

and even Wayne LaPierre of the NRA.

460

Malcolm suggests that Blackstone is

authoritative because he was the second most cited author by American political writers in the late eighteenth century,

461

and

LaPierre calls Blackstone's Commentaries “the basis of the American legal system.”

462

It takes a great leap of faith to claim that Blackstone was authoritative in the sense that his exposition of law was accepted ex

cathedra. Blackstone's Commentaries, published in England between 1765 and 1769, were popular in the American colonies.

463

Americans read and cited Blackstone, to be sure, but *397 they read and cited many writers,

464

and it is unlikely they accepted

anyone's work in its entirety as gospel. According to Gordon Wood, the principal appeal of Blackstone's Commentaries was

not so much Blackstone's exposition of particular rules of law as Blackstone's attempt to show that rules flowed from general

principles. Blackstone's Commentaries presented the common law as a science.

465

Science was the vogue of the day, as were

theories of natural law, and it was Blackstone's presentation of rules flowing logically from natural law that Americans found

so appealing.

Blackstone argued that Englishmen enjoyed three absolute rights: the rights of personal security, personal liberty, and private

property.

466

In addition, he believed that there are “certain other auxiliary subordinate rights of the subject, which serve

principally as barriers to protect and maintain inviolate the three great and primary rights.”

467

He named five auxiliary rights

and explained the first four in some detail.

468

The fifth he set forth, without further explanation, as follows:

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their

defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same

statute 1 W. & M. st.2 c.2 and is indeed a public allowance, under due restrictions, of natural right of resistance

and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of

oppression.

469

There is indeed an insurrectionist flavor to this provision. Blackstone seems to be attempting to blend the right set forth in the

Declaration of Rights, which his provision closely tracts, with his theory of natural law. He adopts the Declaration's restriction

that subjects may only have arms allowed by law, but *398 then hits a discordant note by stating that this right is in furtherance

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

of a “natural right of resistance” and the need “to restrain the violence of oppression.”

470

On the one hand, therefore, Blackstone

appears to recognize the essence of the right set forth in the Declaration of 1689 -- a right to possess only those arms authorized

by Parliament, under whatever restrictions Parliament imposes. On the other hand, he posits a natural right to resist and “to

restrain the violence of oppression” when society and law have broken down.

Malcolm argues that Blackstone “expanded the role of an armed citizenry beyond the individual's own preservation to the

preservation of the entire constitutional structure.”

471

Blackstone is alluding to the preservation of the constitutional structure;

nevertheless, he was probably not saying the right existed to check a tyrannical government. It is far more likely that Blackstone

was saying that subjects enjoyed a right to own weapons, as may be authorized by Parliament, as a check on a tyrannical king, and

that is how he was understood on both sides of the Atlantic.

472

First, there is a logical inconsistency in Parliament authorizing

the possession of weapons to be used to frustrate the execution of its own laws. Second, Blackstone did not believe Parliament

was capable of tyranny. He wrote that tyrannical governments existed only when the power to make and enforce the law were

consolidated in a single person or entity.

473

Where, as in England, the legislative and executive authorities were separate,

the legislative authority would take care not to entrust the executive with sufficient power to subvert its own independence,

thereby protecting the liberty of the subject.

474

This was entirely consistent with the thinking of the day, both in England and

America, that liberty is not the ability to do as one pleases but rather it is “the happiness of living *399 under laws of our own

making.”

475

Thus, wrote Blackstone, Parliament is “coequal with the kingdom itself”

476

and its power is “transcendent and

absolute.”

477

Moreover, Blackstone expressly rejected Locke's theory that the people retained the supreme power to remove or

alter the legislature in the event it violated the people's trust.

478

This too was consistent with the generally accepted theory that

while tyranny was a perpetual threat at one end of the spectrum, anarchy was the perpetual threat lurking at the other end.

479

When passages of the Commentaries are not ripped from context, we see that Blackstone was primarily tracking the Declaration

of Rights of 1689. He substituted “subjects” for “Protestants” but in no way altered the basic premise that one's right to have

arms is prescribed by law, that is, by Parliament. As one might expect from Blackstone, he attempted to explain the reason

for the right by putting a gloss of natural law upon it. What to the contemporary eye looks like an insurrectionist rationale,

however, had a different appearance to the eighteenth century eye. Blackstone was not saying that Parliament regulated a right

to keep arms to resist the government, but to resist the King. In modern terms, then, this was a mechanism for preserving the

separation and balance of powers. In a somewhat different cast, that is exactly how the American Founders imported it. In

England, Parliament regulated the right to have arms as a check on the Crown. Madison cropped and refashioned this concept

so that, in a more limited form, it became a check on a power *400 entrusted to Congress. The congressional authority to arm

and organize the militia was tempered with the proviso that the militia could be armed.

Finally, insurrectionists rely on select writings of Madison to support their argument that the Founders were themselves

insurrectionists. Portions of the following passage from The Federalist Number 46 are often quoted in contemporary

insurrectionist literature:

Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion

of the federal government: still it would not be going too far to say that the State governments with the people

on their side would be able to repel the danger. The highest number to which, according to the best computation,

a standing army can be carried . . . . would not yield, in the United States, an army of more than twenty-five or

thirty thousand men. To these would be opposed a militia amounting to near half a million citizens with arms

in their hands, officered by men chosen from among themselves, fighting for their common liberties and united

and conducted by governments possessing their affections and confidence. It may well be doubted whether a

militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best

acquainted with the late successful resistance of this country against the British arms will be most inclined to

deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people

of almost every other nation, the existence of subordinate governments, to which the people are attached and by

which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable

than any which a simple government of any form can admit of.

480

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

Insurrectionists argue that this section demonstrates two things. First, they argue that Madison believed in a universal militia

since his figure of half-a-million armed citizens equals the entire able-bodied, adult, white male population.

481

Second, they

argue that Madison believed that the people had a right to *401 keep and bear arms as the ultimate check on a tyrannical

federal government.

482

Though not entirely wrong, this argument is in many ways misleading.

It is important to appreciate when, why, and how the above passage was written. The eighty-five newspaper articles that

collectively came to be known as The Federalist Papers were written to persuade the people of New York to ratify the

Constitution. According to Clinton Rossiter, they were “written with a haste that often bordered on the frantic, printed and

published as if it were the most perishable kind of daily news.”

483

They are, of course, a brilliant collection. Rossiter calls

them “the most important work in political science that has ever been written, or is likely ever to be written, in the United

States.”

484

Still, they were essentially advocacy pieces. Scholars are divided as to what extent the authors of The Federalist

Papers -- Hamilton, Madison, and Jay -- departed from their private views to persuade readers who held different opinions.

485

Indeed Jefferson himself remarked that in some parts of The Federalist Papers “the author means only to say what may be best

said in defense of opinions in which he did not concur.”

486

Number 46, one of twenty-six papers written by Madison, appeared in a New York newspaper on January 29, 1788. It is a

continuation of the previous paper. The anti-Federalists were raising the specter of an all powerful federal government that

would swallow the states and devolve into corruption and tyranny. In Numbers 45 and 46, Madison responds with a three-

pronged argument: (1) a strong federal government is necessary to provide security against foreign and domestic threats, as well

as the possibility of “wars among the different States” themselves;

487

(2) the people will control the federal government under

a constitutional process that will assure it serves the *402 people's will; and (3) power shall continue to reside in both the

federal and state governments. With respect to the last point, Madison writes that in the course of writing this series of papers

he was becoming more persuaded that if an imbalance were to develop between the state and federal governments, it would

be because too much power flowed to the states.

488

Madison states the theme of Number 46 in the first sentence of that paper as follows: “Resuming the subject of the last paper,

I proceed to inquire whether the federal government or the State governments will have the advantage with regard to the

predilection and support of the people.”

489

Reading Number 46 in its entirety, one sees that Madison is arguing arguendo.

Madison makes it clear that he believes the carefully constructed constitutional structure will prevent the federal government

from becoming an instrument of tyranny. Quite clearly, Madison believed that the fear mongering employed to defeat the

Constitution bordered on paranoia. However, he was willing to address this fear mongering on its own terms, to convince those

in its grip that they need not fear federal power.

Shortly before the passage quoted at length above, Madison writes:

The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that

the federal government may previously accumulate a military force for the projects of ambition. The reasonings

contained in these papers must have been employed to little purpose indeed, if it could be necessary now to

disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an

uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly

and systematically pursue some fixed plan for the extension of the military establishment; that the governments

and the people of the States should silently and patiently behold the gathering storm and continue to supply the

materials until it should be prepared to burst on their own heads must appear to everyone more like the incoherent

dreams of a delirious jealousy, or the misjudged *403 exaggerations of a counterfeit zeal, than like the sober

apprehensions of genuine patriotism. Extravagant as the supposition is, let it, however, be made.

490

It is important to note that Madison is speaking of the relative power between the state and federal government. He says, in

effect, that if federal troops were to invade a state they would find themselves outnumbered by the state militia. He also says

that the state militia would be armed. He does not say that the people enjoy a right to be armed outside the context of the state

regulated militia, nor that there is a right to keep and bear arms beyond what the states authorize. Madison's focus was always

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

on the separation and balance of power among both the branches of government and between the state and federal governments.

He is speaking about the power and authority of the states.

In the course of his argument, Madison made certain suppositions. One supposition, for example, is that the number of people

employed by the federal government “will be much smaller than the number employed (by) the particular States.”

491

The

projected sizes of the federal army and state militia are suppositions too. To some extent these suppositions were polemical

devices. Madison used them because he believed they were assumptions held by the readers he was seeking to persuade.

Madison's statements also represented his personal preferences. For example, Madison had reservations about a standing

army.

492

But, as he understood, it had been decided these would be matters of policy, not constitutional law. The Constitution

limited neither the number of people the federal government could employ nor the size of a federal standing army. Moreover,

the Constitution did not dictate whether the militia would be universal or select. Madison's tacit suppositions are of essentially

the same kind as those Hamilton expressly made elsewhere in The Federalist Papers, when he said the organization of the militia

was a matter entrusted to Congress but went on to recommend “a select corps of moderate size.”

493

*404 Madison's allusion to an armed population is supposition too. At the conclusion of the war, guns were probably more

widely disbursed throughout the American population than ever before. Madison's argument includes assumptions based on the

circumstances of the day, but nowhere does he suggest the circumstances may not change as policy changes. Moreover, one

cannot read The Federalist Number 46 as an explanation of the Second Amendment because, of course, it would be several

more years before Madison would write that provision. At this point in time Madison was still opposed to a bill of rights.

494

To the extent that Madison's thinking evolved from the time he made his contributions to The Federalist Papers to the time he

wrote the Second Amendment, his support for a strong federal government and his fear of anarchy probably both increased.

One of his biographers writes that “Madison's opinions changed as he was working on the series.”

495

The process of writing

The Federalist Papers “left Madison convinced that the Constitution was a better document than he had thought a month before

he started writing.”

496

The full impact of Shays's Rebellion and lesser insurrections had probably not yet been absorbed. And

rhetoric that had been so useful in stimulating revolution, such as romanticizing the militia and railing against the evils of a

standing army, must have begun to have a different effect on Madison as it became the tool of anti-Federalist opposition.

“In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly

be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger,”

Madison wrote elsewhere in The Federalist Papers.

497

Anyone who has read much more of Madison than the excerpts served

up by contemporary insurrectionists understands that Madison was, first and foremost, a champion of properly structured

governmental power. His faith was in the people as expressed through constitutional institutions, not in people with muskets

in their hands.

*405 IV. The Myth of the Self-Appointed Militia

“In some sense, every participant in the Second Amendment debate agrees that the Framers gave the right to arms to a militia,

but we disagree over the exact makeup of the militia,” writes David C. Williams.

498

Williams divides the debaters into two

camps. As Williams sees it, one camp believes in a universal militia. That is, every adult citizen who has not been convicted of

a felony or otherwise disqualified is a member of the militia, and therefore has a right to keep and bear arms. The other camp

believes that the people have a right to organize a “well regulated” private militia and it is the members of private militias, such

as the Michigan Militia and the Militia of Montana,

499

who are protected by the Second Amendment.

Fundamentally, however, these are different wings of the same school of thought. What binds them together is the belief in

a self-appointed militia. Both those who believe that the militia consists of everyone ready and willing to take up arms in an

emergency, and those who believe that the militia consists of people who chose to join private organizations, believe that citizens

make themselves militia members. The opposing view holds that the militia membership is defined not by its members, but

by lawful authority.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

The individual rights model is grounded in the belief of a self-appointed militia. Although the idea that only people in organized

militia groups enjoy a right to keep and bear arms may be popular within the militia movement itself, the universal militia is by

far the more widely held view. Stephen P. Halbrook, for example, maintains that “the two categorical imperatives of the Second

Amendment (are) that a militia of the body of the people is necessary to guarantee a free state and that all of the people all of the

time (not just when called for organized militia duty) have a right to keep arms.”

500

Akhil Amar has made a similar argument:

“In 1789, when used without any qualifying *406 adjective, •the militia' referred to all Citizens capable of bearing arms.”

501

This idea is repeated endlessly in the insurrectionist literature.

502

The fundamental problem with the view that the Second Amendment mandates a universal militia is the Constitution itself.

Article I, Section 8 of the Constitution provides that Congress has the power to organize the militia. Some of the Founders may

have believed in a universal militia, but in their collective wisdom they ultimately decided not to write an immutable definition

of the militia into the Constitution. When Madison referred to “the militia” in the Second Amendment, he knew full well the

term was already defined in the main body of the Constitution, and we must presume the members of the First Congress and the

state legislatures knew this as well. Nothing in the Second Amendment changed Article I, Section 8. Indeed, Madison himself

said that nothing in the Bill of Rights altered the Constitution.

503

We cannot give “militia” a different meaning *407 in the

Second Amendment than that expressly given to it in the main body of the Constitution without violating cardinal principles

of constitutional construction.

504

Conclusion

In his article, The Bill of Rights as a Constitution, Akhil Amar argues that the Bill of Rights was “(o)riginally a set of largely

structural guarantees applying only against the federal government.”

505

“Like the original Constitution, the original Bill

of Rights was webbed with structural ideas,” he writes.

506

“Federalism, separation of powers, bicameralism, representation,

amendment -- these issues were understood as central to the preservation of liberty.” Though he has not yet fully appreciated

it, the Second Amendment provides a striking example of Amar's thesis. Its parentage is in the English Declaration of Rights

of 1689. Although to twentieth century American eyes the right to have arms provision of that document appears at first blush

to provide an individual right, the provision is in fact quite a different animal. It is a structural provision. It does not mean that

Protestants may have arms, but that Parliament, and not the Crown, has the authority to regulate the matter.

This was the template that Madison, the quintessential structuralist, used when he wrote the Second Amendment, and this was

the model in the minds of the members of the First Congress and the state legislatures when they proposed and ratified the

Amendment. Like English legislators a century earlier, Madison wrote the Second Amendment to resolve a structural problem.

The Constitution had given Congress the power to organize and arm the militia. Focusing on this provision, the anti-Federalists

sent a chill down the spine of the South: would Congress, deliberately or through indifference, destabilize the *408 slave

system by “disarming” the state militia? Whether Madison personally shared this fear cannot today be known, but there is little

doubt that after Richmond this specter plagued many Southerners, including many of Madison's constituents.

What does the hidden history mean with respect to how the Second Amendment should be interpreted? I do not in this Article

take any position with respect to “original intent.” Nevertheless, two items of significance ought to be mentioned. First, the

Second Amendment was written to assure the South that the militia -- the very same militia described in the main body of the

Constitution -- could be armed even if Congress elected not to arm them or otherwise attempted to “disarm” them. From our

perspective today, this may seem like a small matter since Congress retained exclusive authority to determine the composition

of the militia, and, thus, who could enjoy the right to bear arms. However, in the context of the concern and circumstances of

the time, it was significant. The Amendment deals with keeping and bearing arms in the militia, subject to federal and state

regulation. Therefore, to the extent original intent matters, the hidden history of the Second Amendment strongly supports the

collective rights position.

Second, the Second Amendment lives two lives: one in the law and the other in politics, public policy, and popular culture. The

hidden history has ramifications in the second realm as well. The Second Amendment takes on an entirely different complexion

when instead of being symbolized by a musket in the hands of the minuteman, it is associated with a musket in the hands of

the slave holder.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

Footnotes

Associate Professor, Roger Williams University School of Law. I wish to thank Michael C. Dorf, Cynthia J. Giles,

Jonathan M. Gutoff, William G. Ross, Joshua B. Stein, Robert M.C. Webster, David M. Zlotnick, and the participants in

the Law and History Colloquium at Cumberland School of Law, Samford University and a faculty workshop at Roger

Williams University School of Law for their helpful comments, though I should stress that the conclusions reached in

this Article are mine alone.

Commencement Address at Yale University, Pub. Papers 470, 471 (June 11, 1962).

See Douglas O. Linder, Trends in Constitution-Based Litigation in the Federal Courts, 63 U. Mo. at Kan. City L. Rev.

41, 69 (1994) (stating that third amendment cases were least litigated). Compare U.S. Const. amend. II with U.S. Const.

amend. III.

Compare U.S. Const. amend. I with U.S. Const. amend. II (totaling pages in bound volumes and 1996 Supplementary

Pamphlets).

See United States v. Cruikshank, 92 U.S. 542 (1976); United States v. Miller, 307 U.S. 174 (1939); Presser v.

Illinois, 116 U.S. 252 (1886). Gun control supporters like to call attention to Lewis v. United States, 445 U.S. 55,

65 n.8 (1980) (noting that Second Amendment does not guarantee right to either keep or bear firearms if there is no

relationship to militia), while gun control opponents often cite United States v. Verdugo-Urquidez, 494 U.S. 259, 265

(1990) (suggesting that term “the people” as used in First, Second, and Fourth Amendments may all refer to “persons

who are part of a national community”). However, neither of these cases presented a Second Amendment issue, and the

court's brief and passing comments about the Second Amendment in both of these cases are clearly dicta.

See Miller, 307 U.S. 174.

For a sampling of expressions of devotion to the right to keep and bear arms by leading American politicians, see, for

example, Ben Bradlee Jr., Dukakis Aides Foresee a Debate of One-Liners, Boston Globe, Sept. 24, 1988, at 1 (regarding

Michael S. Dukakis); John Jacobs, Foley After the Fact, Sacramento Bee, Mar. 21, 1996, at B6 (regarding Thomas

S. Foley); George Larner, Jr., Gingrich Promised NRA No Gun Control Legislation, Wash. Post, Aug. 1, 1995, at A1

(regarding Newt Gingrich); William March, Where They Stand -- Campaign •96: Taking Shotgun Approach Works on

Gun Issue, Tampa Trib., June 18, 1996, at 1 (regarding Bill Clinton and Robert Dole); John J. Pitney, Jr., Powell and

Clinton: Two Sides of a Coin; Politics: On Quotas, School Prayer, Gun Control and Values, There's Not a Dime's Worth

of Difference Between the Two, L.A. Times, Sept. 21, 1995, at B9 (regarding Colin Powell); The Republicans in New

Orleans; Transcript of Bush Speech Accepting Presidential Nomination, N.Y. Times, Aug. 19, 1988, at A14 (regarding

George H. Bush).

It is an American irony that presidential candidates feel compelled to pledge fealty to the right to bear arms while running

for office, and then reaffirm that pledge after surviving assassination attempts. See, e.g., Tom Morganthau & Bob Cohn,

A Boost for Brady, Newsweek, April 8, 1991, at 30 (quoting Reagan as saying, “I'm a member of the NRA, and my

position on the right to bear arms is well known.”). See also The President; Still Against Gun Control?, The Economist,

Sept. 13, 1975, at 68 (reporting that after “Squeaky” Fromme attempted to shoot him with .45 caliber pistol, President

Gerald Ford remained “reluctant to offend the right wing of his own Republican party, which considers the right to bear

arms fundamental to the Constitution”).

Subcomm. on the Constitution of Senate Comm. on the Judiciary, 97th Cong., 2d Sess., The Right to Keep and Bear

Arms viii (Comm. Print 1982).

See Bob Baker, The Bill of Rights: America's Basic Freedoms After 200 Years, L.A. Times, December 14, 1991, at 28

(presenting poll showing that more Americans know Constitution contains right to bear arms than know it guarantees

right to remain silent).

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

See Jeff Brazil & Steve Berry, Australia Takes Aim at Abundance of Assault Weapons with Program, Salt Lake Trib.,

August 31, 1997, at A14 (illustrating how America greatly exceeds other nations in gun fatalities and deaths with

statistical comparisons such as America having more gun deaths in one week than Western Europe has in one year).

Handguns are responsible for most of the carnage. Handguns are portable, easy to conceal, and, for some inexplicable

reason, psychologically easier to use against human beings than rifles or shotguns. In 1994, 12,765 people were

murdered, about 64,000 were wounded, and 250,000 were robbed with handguns in the United States. See Bureau of the

Census, U.S. Dept. of Commerce, Statistical Abstract of the United States 1996, at 204-05 (116th ed. 1996); Erik Larson,

Lethal Passage: How the Travels of a Single Handgun Expose the Roots of America's Gun Crisis 18 (1994) (noting that

although there is no data on number of non-fatal injuries, in part because gun lobby has opposed efforts to gather it, it

is estimated that number of nonfatal gunshot shootings is about five times number of fatalities); Carl T. Bogus, Pistols,

Politics and Products Liability, 59 U. Cin. L. Rev. 1103, 1116 (1991) (hereinafter Bogus, Pistols, Politics and Products

Liability) (computing number of robberies and aggravated assaults from incident rates and national population). The

second bloodiest Western country, Canada, had only 170 handgun homicides in 1995. Kwing Hung, Firearm Statistics

Table 9 (Dept. of Justice Canada, Aug. 1996). Canadians are alarmed at their level of handgun violence and are taking

steps to strengthen their county's already rigorous gun control laws. Canada is not alone. Alarmed by a total of 75

gun-related deaths that occurred in all of England, Scotland, and Wales in 1994, the British Government proposed new

legislation banning all handguns, with the exception that handguns of .22 caliber or less may be kept under lock and key

at licensed gun clubs. The then-opposition Labor Party proposed, instead, an outright ban on all handguns. See Sarah

Lyall, British Government Proposes Ban on Possession of Most Handguns, N.Y. Times, Oct. 17, 1996, at A1.

See Franklin E. Zimring & Gordon Hawkins, Crime is not the Problem 55 (1997). In 1990, the homicide rate in the

United States was 9.4 per 100,000 citizens. No other G7 nation had a homicide rate exceeding 2.6. See id. Among the

large industrial countries, the United States is the only nation in which a majority of homicides are committed with guns.

See id. at 109. Indeed, the rate that handgun homicides occur in the United States is 175 that of England and Wales (per

million population). See id. at 110.

See Carl T. Bogus, The Strong Case for Gun Control, Am. Prospect, Summer 1992, at 19 (hereinafter Bogus, Strong

Case for Gun Control); Bogus, Pistols, Politics and Products Liability, supra note 10, at 1117-23.

Brady Handgun Violence Prevention Act, 18 U.S.C.A. § 921 (West 1997).

See Bogus, Strong Case for Gun Control, supra note 12, at 26-28 (discussing political barriers to effective gun control

in United States); Larson, supra note 10, at 208-13 (criticizing lack of effective firearm regulation).

See Bogus, Strong Case for Gun Control, supra note 12, at 26-28.

See id.

U.S. Const. amend. II.

See Kenneth C. Davis, Don't Know Much About History: Everything You Need to Know About American History but

Never Learned 50-51 (1995) (presenting popular version of events at Lexington and Concord).

See Robert Leckie, George Washington's War: The Saga of the American Revolution 105 (1993).

See generally Richard Slotkin, Regeneration Through Violence: The Mythology of the American Frontier, 1600-1860

(1993).

See Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 58 (1984) (hereinafter

Halbrook, That Every Man Be Armed) (arguing that Revolution succeeded only because colonists owned and used

firearms).

See Franklin E. Zimring & Gordon Hawkins, The Citizens Guide to Gun Control 143-44 (1987) (noting that while there

was considerable body of thought in American colonies that individuals had inherent right to own weapons to hunt and

defend themselves in wilderness, “the disarming of individuals was apparently not one of the grievances leading to the

American Revolution”).

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

See generally Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (1994); Halbrook,

That Every Man Be Armed, supra note 21; see also Dennis A. Henigan et al., Guns and the Constitution: The Myth of

Second Amendment Protection for Firearms in America (1995) (differing from other works cited herein because it is

not from academic press and does not promote insurrectionist theory).

See infra note 34 and accompanying text.

See Eric Healy, Gun Control Debate Takes Diverse Aim at 2d Amendment, Ariz. Daily Star, Nov. 10, 1991 (reporting

on Second Amendment symposium held at University of Arizona College of Law on Nov. 9, 1991); Scott Heller, The

Right to Bear Arms: Some Prominent Legal Scholars Are Taking a New Look at the Second Amendment, Chron. of

Higher Educ., July 21, 1995, at A8 (reporting that at least two Second Amendment conferences were held during annual

meetings of Association of American Law Schools in recent years).

Law review symposia on the Second Amendment have been published in 1998-1 BYU L. Rev. (forthcoming 1998);

A Second Amendment Symposium Issue, 62 Tenn. L. Rev. 443 (1995); The Bill of Rights Yesterday and Today: A

Bicentennial Celebration Symposium Issue, 26 Val. U. L. Rev. 1 (1991); Symposium: Gun Control and the Second

Amendment, 15 U. Dayton L. Rev. 1 (1989); Second Amendment Symposium: Rights in Conflict in the 1980's, 10 N.

Ky. L. Rev. 1 (1982). Another symposium dealing in large part with the Second Amendment is published in Symposium,

Gun Control, 49 L. & Contemp. Probs. 1 (1986).

For example, two such organizations are Academics for the Second Amendment in St. Paul, Minnesota and Second

Amendment Foundation in Bellevue, Washington.

See Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your

Militia Lately?, 15 U. Dayton L. Rev. 5, 40-57 (reviewing case law).

See Robert J. Spitzer, The Politics of Gun Control 44-45, 57 n.67 (1995); Josh Sugarmann, National Rifle Association:

Money, Firepower, Fear 45-64, 131-34 (1992).

See, e.g., Burton v. Sills, 248 A.2d 521 (N.J. 1968), appeal dismissed, 394 U.S. 812 (1969) (holding that Framers of

Second Amendment were attempting to maintain states' rights and organized militias, not to protect individual rights).

In United States v. Miller, the Supreme Court reviewed Article I, Section 8 of the Constitution, which grants Congress the

lion's share of responsibility, including the power to organize, arm, and discipline the militia, and wrote: “With obvious

purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee

of the Second Amendment were made. It must be interpreted and applied with that end in view.” United States v.

Miller, 307 U.S. 174, 178 (1939). Miller was consistent with the two prior Supreme Court cases dealing with the Second

Amendment: Pressler v. Illinois, 116 U.S. 252 (1886), and United States v. Cruikshank, 92 U.S. 542 (1876). While

these three cases are not without some ambiguity, the lower courts have unanimously interpreted them and the language

of the Second Amendment itself to mean that the right to keep and bear arms is limited to doing so within the state-

regulated militia. For example, in a case concerning whether a city could prohibit the possession of handguns within its

borders, the Seventh Circuit held: “Construing (the language of the Second Amendment) according to its plain meaning,

it seems clear that the right to bear arms is inextricably connected to the preservation of a militia. This is precisely the

manner in which the Supreme Court interpreted the second amendment in United States v. Miller.” Quilici v.

Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982).

See generally Printz v. United States, 117 S. Ct. 2365, 2385-86 (1997) (Thomas, J., concurring).

See Jim Schneider, What You Can Do (Sponsorship of Essay Contests Among Gun Shop Operators), Shooting Industry,

Apr. 1, 1997, at 14 (discussing NRA sponsored student essay contests about Second Amendment). I refer to the Firearms

Civil Rights Legal Defense Fund (“FCRLDF”). See Jan Hoffman, Fund Linked to N.R.A. Gave $20,000 for Goetz's

Defense, N.Y. Times, Apr. 16, 1996 (establishing FCRLDF connection to NRA).

See Brief for Amicus Curiae Academics for the Second Amendment, U.S. v. Lopez, U.S. (No. 93-1260)(available on

LEXIS in GENFED/BRIEFS file) (hereinafter “A2A Brief”). Similar lists are set forth in Randy E. Barnett & Don B.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

Kates, Under Fire: The New Consensus on the Second Amendment, 45 Emory L.J. 1139, 1143-44 nn.12-13 (1996); and

David B. Kopel & Christopher C. Little, Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms

Prohibition, 56 Md. L. Rev. 438, 523 n.445 (1997).

However, the following articles, all of which support the collective rights model, are omitted from the list compiled

by Academics for the Second Amendment: Michael A. Bellesîles, The Origins of Gun Culture in the United States,

1760-1865, 83 J. Am. History 425 (1996); Carl T. Bogus, Race, Riots and Guns, 66 S. Cal. L. Rev. 1365 (1993); Lawrence

Delbert Cress, An Armed Community: The Origin and Meaning of the Right to Bear Arms, 71 J. Am. History 22 (1984);

Peter Buck Feller, The Second Amendment: A Second Look, 61 Nw. L. Rev. 46 (1966); Andrew D. Herz, Gun Crazy:

Constitutional False Consciousness and Dereliction of Dialogic Responsibility, 75 B.U. L. Rev. 57 (1995); Ronald B.

Levine & David B. Saxe, The Second Amendment: The Right to Bear Arms, 7 Hous. L. Rev. 1 (1969); Ralph P. Rohner,

The Right to Bear Arms: A Phenomenon of Constitutional History, 16 Cath. U. L. Rev. 53 (1966); Roy G. Weaherup,

Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 Hastings Const. L.Q. 961

(1975); Frederick Bernays Wiener, The Militia Clause of the Constitution, 59 Harv. L. Rev. 181 (1940).

Dennis A. Henigan, Arms, Anarchy and the Second Amendment, 26 Val. U. L. Rev. 107, 110 (1991) (hereinafter

Henigan, Arms, Anarchy and the Second Amendment).

Halbrook, a lawyer and former assistant professor of philosophy at George Mason University, divides his time between

writing, lecturing, and practicing law, where he routinely represents gun manufacturers and gun rights organizations.

In 1991 and 1992, the FCRLDF, an arm of the NRA., gave research grants totaling $38,569.45 to Halbrook. See Firearms

Civil Rights Legal Defense Fund: Annual Report 9 (1991) (listing Halbrook as grant recipient of $16,800 to research

right to possess arms based on Fourteenth Amendment); Firearms Civil Rights Legal Defense Fund: Annual Report 11

(1992) (listing Halbrook as recipient of two grants: (1) $16,800 to research right to possess arms based on Fourteenth

Amendment; and (2) $4969.45 to research Hawaii's state constitutional guarantee to keep and bear arms) (on file with

author). FCRLDF no longer releases this information.

See Stephen P. Halbrook, A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees (1989);

Halbrook, That Every Man Be Armed supra note 21; Stephen P. Halbrook, Congress Interprets the Second Amendment:

Declarations by a Co-Equal Branch of the Individual Right to Keep and Bear Arms, 62 Tenn. L. Rev. 597 (1995);

Stephen P. Halbrook, Encroachments of the Crown of Liberty of the Subject: Pre-Revolutionary Origins of the Second

Amendment, 15 U. Dayton L. Rev. 91 (1989); Stephen P. Halbrook, Firearms, the Fourth Amendment, and Air Carrier

Security, 52 J. Air L. & Com. 585 (1987); Stephen P. Halbrook & Richard E. Gardiner, NRA and Law Enforcement

Opposition to the Brady Act, 10 St. John's J. Legal Comment. 13 (1994); Stephen P. Halbrook, Personal Security,

Personal Liberty, and “the Constitutional Right to Bear Arms”: Visions of the Framers of the Fourteenth Amendment, 5

Seton Hall Const. L.J. 341 (1995); Stephen P. Halbrook, Rationing Firearm Purchases and the Right to Keep and Bear

Arms: Reflections on the Bills of Rights of Virginia, West Virginia, and the United States, 96 W. Va. L. Rev. 1 (1993);

Stephen P. Halbrook, Second-Class Citizenship and the Second Amendment in the District of Columbia, 5 Geo. Mason

U. Civ. Rts. L.J. 601 (1995); Stephen P. Halbrook, The Jurisprudence of the Second and Fourteenth Amendments, 4

Geo. Mason L. Rev. 1 (1981); Stephen P. Halbrook, The Right of the People or the Power of the State: Bearing Arms,

Arming Militias, and the Second Amendment, 26 Val. U. L. Rev. 131 (1991); Stephen P. Halbrook, The Right to Bear

Arms in Texas, 41 Baylor L. Rev. 629 (1989); Stephen P. Halbrook, The Right to Bear Arms in the First State Bills of

Rights: Pennsylvania, North Carolina, Vermont, and Massachusetts, 10 Vt. L. Rev. 255 (1985); Stephen P. Halbrook,

To Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787-1791, 31 N. Ky. L. Rev. 13

(1982); Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to “Bear Arms,” 49 Law

& Contemp. Probs. 151 (1986).

Halbrook, That Every Man Be Armed, supra note 21, at 195 (1984).

Id. at 77.

See Halbrook, That Every Man Be Armed, supra note 21, at 193-96 (arguing that armed citizens are able to protect

themselves against government that infringes upon their rights).

Id. at 195.

Id. at 77.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

See Garry Wills, To Keep and Bear Arms, N.Y. Rev. Books, Sept. 21, 1995, at 62 (hereinafter Wills, To Keep and Bear

Arms) (critiquing work of five most prolific insurrectionists -- Robert J. Cottrol, Stephen P. Halbrook, Don B. Kates,

Joyce Lee Malcom, and Robert Shalhope -- and concluding that “it is the quality of their arguments that makes them

hard to take seriously”).

See Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 656, 648 (1989) (arguing that “it

seems foolhardy to assume that the armed state will necessarily be benevolent,” and appearing to endorse view “that the

ultimate •checking value' in a republican polity is the ability of an armed populace . . . to resist governmental tyranny”).

See Akhil Reed Amar, The Bill of Rights and Our Posterity, 42 Clev. St. L. Rev. 573, 579-80 (1994) (arguing that

drafters of Second Amendment intended that “(j)ust as the Minutemen farmers of Lexington and Concord had stood up

to paid soldiers of the English crown at the beginning of the Revolutionary War, so local militias under the Constitution

would prevent the new federal government from attempting any similar scheme of military intimidation”); Akhil Reed

Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1162-73 (1991) (hereinafter Amar, Bill of Rights as a

Constitution) (arguing that “(t)he ultimate right to keep and bear arms belongs to •the people,' not the •states”'); Akhil

Reed Amar, The Fifteenth Amendment and “Political Rights,” 17 Cardozo L. Rev. 2225, 2225-26 (1996) (arguing that

“(i)n Republican theory, those who vote traditionally bear arms, and those who bear arms vote”); cf. Akhil Reed Amar,

The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193, 1205-12 (1992) (recognizing that in eighteenth

century America, “(t)he word •right' had no talismanic natural law significance; after all, many sought a Bill to confer

-- or declare -- states' rights, once again revealing the original intertwining of rights and structure”).

See William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236, 1255 (1994)

(arguing that “the essential claim . . . advanced by the NRA with respect to the Second Amendment is extremely strong”).

Heller, supra note 25, at A8.

117 S. Ct. 2365 (1997).

See id. at 2386 n.2 (Thomas, J., concurring).

Id.

See infra notes 299-304 and accompanying text.

Clinton Rossiter, Introduction to The Federalist Papers viii (Clinton Rossiter ed., 1961).

See Gordon S. Wood, The Creation of the American Republic 1776-1787, at 486 (1969) (hereinafter Wood, Creation

of the American Republic).

See Thornton Anderson, Creating the Constitution: The Convention of 1787 and the First Congress 6-12, 174-76 (1993)

(recounting anti-Federalist efforts to counter Nationalists' ratification campaign).

See generally Edmund S. Morgan, The Birth of the Republic 1763-89, at 145-56 (3d ed. 1992) (hereinafter Morgan,

Birth of the Republic); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 131-60

(1996) (hereinafter Rakove, Original Meanings).

U.S. Const. art. VII.

See Wood, Creation of the American Republic, supra note 54, at 532-33 (describing benefits to Federalists of bypassing

state legislatures in favor of ratifying conventions).

See Rossiter, supra note 53, at viii.

See The Anti-Federalist Papers and the Constitutional Convention Debates 269 (Ralph Ketcham ed. 1986) (hereinafter

Anti-Federalist Papers) (stating that “Brutus” is believed to have been New York Judge named Robert Yates who

published 16 essays in New York Journal between October 1787 and April 1788).

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

See id. at 227 (stating that Samuel Bryan wrote under pseudonym “Centinel” and published 18 essays in Philadelphia

newspapers between October 1787 and April 1788).

See id. at 189 (stating that unknown author published five essays under pseudonym of “John Dewitt” in Boston Herald

American from October to December 1787).

See id. at 256-57, 336 (stating that historians now believe “Federal Farmer” was Melancton Smith of New York). A long

series of essays titled “Letters from a Federal Farmer,” originally published in a Poughkeepsie, New York newspaper

between November 1787 and January 1788 were republished and widely distributed in pamphlet form. Smith debated

the Constitution with Alexander Hamilton and other Federalists before the New York ratifying convention. See id.

See Morgan, Birth of the Republic, supra note 56, at 150-51.

See id.

See Craig R. Smith, To Form a More Perfect Union: The Ratification of the Constitution and the Bill of Rights

1787-1791, at 38 (1993) (hereinafter Smith, To Form a More Perfect Union) (noting that Pennsylvania's assembly was

having final session of year on September 29).

See id. (describing Captain John Barry's search for assemblymen in order to establish quorum).

See Morgan, Birth of the Republic, supra note 56, at 151 (describing events two weeks before Pennsylvania ratifying

convention, including Federalists' vote for ratification).

See Rakove, Original Meanings, supra note 56, at 110-12 (describing incident and critical anti-Federalist sentiment).

See id. at 101. Rhode Island had other objections as well, the failure to abolish slavery and to include a bill of rights

among them. Rhode Island's largest single objection was probably fiscal. America was sharply divided between creditors

and debtors. Rhode Island wanted to pursue a monetary policy that eased the burden on debtors, and it would have been

unable to do so within the United States. The Rhode Island Legislature voted 13 times against convening a ratification

convention. It was not until May 1790, after Providence threatened to secede from Rhode Island and join the Union on

its own, that ratification was ultimately obtained, and even then by a vote of only 34 to 32. See William G. McLoughlin,

Rhode Island: A History 102-04 (1978).

Anti-Federalist Papers, supra note 60, at 14. North Carolina would reject ratification by an overwhelming margin in

August 1787 before ultimately ratifying the Constitution in November 1789. Id. at 26.

See id. at 336. New York was home to some of the most prominent anti-Federalists, including Robert Yates, John

Lansing, and Melancton Smith. See id.; see also M.E. Bradford, Founding Fathers 49-53 (1994) (containing biographical

information on Robert Yates and John Lansing).

See 1 Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1970, at 22-36 (1976)

(hereinafter Historical Statistics of the U.S.) (stating that in 1790, Virginia had total population of 692,000 people,

consisting of 442,000 whites and 306,000 blacks; compared to Pennsylvania, second largest state, with total population

of 434,000).

See Smith, To Form a More Perfect Union, supra note 66, at 98 (describing Virginia as most influential state in Union).

See id. (stating that because of Virginia's geographic location, Union would be split in two if Virginia failed to ratify

constitution).

In a letter George Mason sent to Thomas Jefferson the week Mason set out for the Richmond Convention, Mason wrote:

“From the best information I have had, the Members of the Virginia Convention are so equally divided upon the Subject,

that no Man can, at present, form any certain Judgment of the Issue.” See Letter from George Mason to Thomas Jefferson

(May 26, 1788) in The Origin of the Second Amendment: A Documentary History of the Bill of Rights 1787-1792, at

365, 366 (David E. Young ed., 2d ed., 1995) (relating objections over Federal control of state militias); see also Anti-

Federalist Papers, supra note 60, at 14.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

See 1 The Records of the Federal Convention of 1787, at 603 (Max Farrand ed., 1911) (hereinafter 1 Farrand's Records).

Randolph argued that the Constitution should be ratified only with prior amendments and called for a second national

constitutional convention. In one of the most significant political events of the struggle, Madison succeeded in converting

Randolph to the Federalist cause shortly before the Convention began in June. Instead of a powerful opponent, Randolph

became an influential supporter of ratification. See Lance Banning, The Sacred Fire of Liberty: James Madison and

the Founding of the Federal Republic 236 (1995); see also Bradford, supra note 72, at 148-56 (providing biographical

information on George Mason); Harry Ammon, James Monroe: The Quest for National Identity 70-79 (1971) (describing

ratification convention in Richmond, Virginia).

See Ammon, supra note 77, at 71. Richard Henry Lee, who, according to historian Gordon S. Wood, was “undoubtedly

the strongest mind the Antifederalists possessed,” was also from Virginia. Although he had been defeated by a Federalist

candidate and would not be a delegate to the Convention, he was expected to be a force behind the scenes. See Wood,

Creation of the American Republic, supra note 54, at 485 (1969). Two other intellectual giants were also not delegates.

George Washington, as chair of the Philadelphia Convention, believed that he should not directly participate in a ratifying

convention. The other was Thomas Jefferson, then serving as ambassador to France. See Ammon, supra note 77, at 70.

See Rakove, Original Meanings, supra note 56, at 116 (noting that anti-Federalists would “freely credit any objection

their imaginations could conjure, no matter how wild”).

See id. at 113-28 (discussing strategy of anti-Federalists).

See Howard Zinn, A People's History of the United States 32-38 (1980) (describing growth and importance of slavery

in South generally and Virginia specifically); see also Rakove, Original Meanings, supra note 56, at 70-93 (describing

concerns over slavery at Constitutional Convention in Philadelphia).

1 Farrand's Records, supra note 77, at 605.

See Anderson, supra note 55, at 103; Rakove, Original Meanings, supra note 56, at 85-88 (chronicling position of

Southern delegates on slavery at Philadelphia Convention).

I use the terms “North” and “Northern” states to refer to Pennsylvania, New Jersey, New York, and the New England

states.

See infra notes 299-304 and accompanying text (discussing slavery compromise).

Paul Finkelman, Slavery and the Founders 6 (1996) (hereinafter Finkelman, Slavery and the Founders).

Letter from William L. Smith to Edward Rutledge (Aug. 10, 1789) in Creating the Bill of Rights: The Documentary

Record from the First Congress 273 (Helen E. Veit, et al. eds., 1991) (hereinafter Creating the Bill of Rights).

See Anderson, supra note 55, at 103; Finkelman, Slavery and the Founders, supra note 86, at 5. Nor were Virginians

particularly concerned about Congress abolishing the slave trade in 20 years time. Virginia was a slave exporting state,

and if Congress ended the importation of slaves from abroad, Virginia's slaves would increase in value. See Anderson,

supra note 55, at 103 (quoting Charles Pickney to this effect).

See Gordon S. Wood, The Radicalism of the American Revolution 186 (1991) (hereinafter Wood, Radicalism of the

American Revolution) (describing attitudes toward slavery before and after Revolution).

The Declaration of Independence, para. 2 (U.S. 1776).

When, during the Philadelphia Convention, Luther Martin had the temerity to suggest that slavery was “inconsistent with

the principles of the revolution and dishonorable to the American character,” he was met with a barrage of responses

from Southern delegates. The most famous is probably that of Charles Pickney of South Carolina, who declared: “If

slavery be wrong, it is justified by the example of all the world.” See Rakove, Original Meanings, supra note 56, at 87

(quoting Martin and Pickney); see also Fawn M. Brodie, Thomas Jefferson: An Intimate History 110 (1974) (speculating

that Southerners found comfort in blaming British as source of slavery).

Id. at 96

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

In the case of Commonwealth v. Jennison, the Chief Justice of the Massachusetts Supreme Court declared:

Sentiments more favorable to the natural rights of mankind, and to that innate desire for liberty which heaven, without

regard to complexion or shape, has planted in the human breast -- have prevailed since the glorious struggle for our

rights began. And these sentiments led the framers of our constitution of government . . . to declare -- that all men are

born free and equal; and that every subject is entitled to liberty . . . (S)lavery is in my judgment as effectively abolished

as it can be by the granting of rights and privileges wholly incompatible and repugnant to its existence.

A. Leon Higginbotham, Jr., In the Matter of Color 94-95 (1978) (hereinafter Higginbotham, In the Matter of Color)

(quoting the charge to the jury by Chief Justice William).

See James Oakes, “The Compromising Expedient”: Justifying a Proslavery Constitution, 17 Cardozo L. Rev. 2023,

2027 (1996).

See Higginbotham, In the Matter of Color, supra note 93, at 299-305. Pennsylvania's “Act for the Gradual Abolition

of Slavery,” enacted in 1780, was a partial measure. It provided that children born after the act was enacted were to be

freed upon reaching age 28, and a later clarification of the act declared that all slaves brought into the state by persons

residing in or intending to reside in Pennsylvania were deemed to be immediately freed. See id.

See McLoughlin, supra note 70, at 106 (1978) (stating that Rhode Island enacted a gradual emancipation act in 1784).

See Higginbotham, In the Matter of Color, supra note 93, at 136-43. The history of New York's emancipation legislation is

rather tortured. In 1777, delegates to New York's constitutional convention overwhelmingly passed a resolution declaring

that “every human being who breathes the air of the state shall enjoy the privileges of a freeman.” The convention

declined to go further because they believed it essential to maintain control of the slaves during the war. In 1785, New

York legislation prohibited the importation of slaves into the state, and placed children born to slave mothers after the

effective date of the act into a sort of half-way house: they were freed but denied the right to vote, hold public office,

and testify against whites in court. In 1799, New York enacted legislation providing that children born to slave mothers

after July 4 of that year were to be freed at either age 25 (female children) or age 28 (male children); no restrictions

were placed on civil or political rights after the individuals became free. See id.

Higginbotham, In the Matter of Color, supra note 93, at 140.

Id.

100

See Morgan, Birth of the Republic, supra note 56, at 142 (expressing view of Roger Sherman of Connecticut at

Constitutional Convention that if Constitution granted national government authority to end slave trade, it would be

incumbent upon the government to do so).

101

See Brodie, supra note 91, at 50 (stating that Jefferson denounced slavery). Although Jefferson denounced slavery, he

talked of emancipation with colonization. Id. At first he proposed deporting slaves to Africa, and later to Santo Domingo

(but only after their masters had been compensated for the loss of this property). See Conor Cruise O'Brien, Thomas

Jefferson: Radical and Racist, Atlantic Monthly, Oct. 1996, at 66 (hereinafter O'Brien, Thomas Jefferson). He believed

whites and blacks could never live together and was adamantly opposed to free blacks remaining in Virginia. See Brodie,

supra note 91, at 50. Jefferson's personal life was consistent with this philosophy. See id. at 441. Though he personally

owned hundreds slaves, he freed only two during his life -- both brothers of Sally Hemings, who is believed to have been

Jefferson's slave mistress. See id. at 248. In his will, Jefferson freed five more slaves; again, all of these were related to

Sally Hemings, including her two sons, who are believed to be Jefferson's sons as well. See id. at 466. Two hundred more

slaves were sold on the auction block to provide funds for Jefferson's estate. See Finkelman, Slavery and the Founders,

supra note 86, at 106. Though he may have treated slaves more kindly than some of his contemporaries, he was not

above threatening them with a whip or, if one escaped, offering a reward for his capture. See Brodie, supra note 91, at 92.

102

See Finkelman, Slavery and the Founders, supra note 86, at 24. Mason refused to sign the Constitution, in part, because

it did not give the federal government the authority to end the slave trade. He opposed the slave trade, however, not

slavery itself. As other delegates understood at the time, Mason's rhetoric against slavery was a transparent ruse to bolster

credibility for his proposal to end the slave trade. His proposal was designed to help, not hinder, Virginia's slave holders.

Virginia had a slave surplus. Its slaves were an exportable commodity and would increase in value if the competition

from slave importers were eliminated. Mason, who personally owned three hundred slaves, opposed every attempt to

end slavery and sponsored state legislation making it difficult for slave holders to emancipate their slaves. See id. at

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

24-25, 152 (describing George Mason's motives); see also Bradford, supra note 72, at 148-57 (providing biographical

information on George Mason).

103

Compare Ammon, supra note 77, at 522-23 (explaining James Monroe's support for American Colonization Society's

efforts to deport slaves to Liberia) with McLoughlin, supra note 70, at 106-07 (stating that slave population in Rhode

Island fell from 4692 or 11.5% of population in 1755 to 985 or 1.4% in 1790, due in part to Moses Brown and other

Quakers promoting voluntary emancipation), and Historical Statistics of the U.S., supra note 73, at 34 (stating that 4370

free blacks lived in Rhode Island in 1790).

104

See John Hope Franklin, The Militant South 1800-1861, at 68-78 (1956) (hereinafter Franklin, Militant South)

(describing slave patrol systems).

105

An example of Southern paranoia may be found in the following passage from Thomas Jefferson's notorious book,

Notes on the State of Virginia:

Deep rooted prejudices entertained by the whites; ten thousand recollections, by the blacks, of the injuries they have

sustained; new provocations; the real distinctions which nature has made; and many other circumstances, will divide us

into parties, and produce convulsions which will probably never end but in the extermination of the one or the other race.

Brodie, supra note 91, at 198.

106

See Historical Statistics of the U.S., supra note 73, at 36.

107

In a letter written in 1736, William Byrd of Virginia worried about the growing “publick danger” from the importation

of so many slaves.

We have already at least 10,000 Men of these descendants of Ham fit to bear Arms, and their Numbers increase every day

as well by birth as Importation. And in case there should arise a Man of desperate courage amongst us, exasperated by

a desperate fortune, he might with more advantage than Cataline kindle a Servile War. Such a man might be dreadfully

mischeivous before any opposition could be formed against him, and tinge our Rivers as wide as they are with blood.

Peter H. Wood, Black Majority: Negroes in Colonial South Carolina from 1670 through the Stono Rebellion 224 (1974)

(hereinafter Wood, Stono Rebellion) (quoting letter of William Byrd). At the time Byrd wrote this letter, Virginia's total

population was approximately 114,000. See Historical Statistics of the U.S., supra note 73, at 1168 (Series Z 1-19).

When the Ratifying Convention met in 1788, Virginia's black population was 306,000. See id. at 36.

108

See Wood, Stono Rebellion, supra note 107, at 314-23; Zinn, supra note 81, at 36 (describing actions of rebel slaves

at Stono, South Carolina, in 1739).

109

See Wood, Stono Rebellion, supra note 107, at 315.

110

Id. at 316.

111

See id. at 315-16.

112

The rebels pursued the Lieutenant Governor's small group; they did not want any white who could raise an alarm to

escape. Had they captured the state's second highest official, the rebels would have gained a psychological advantage,

but they did not know the identity of the men they were pursuing and eventually gave up the chase. See id. at 316.

113

See id. at 317.

114

See Higginbotham, In the Matter of Color, supra note 93, at 193.

115

See Wood, Stono Rebellion, supra note 107, at 317.

116

See id. at 318.

117

See id.

118

See id. at 318-19.

119

See id. at 319.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

120

See id. at 320.

121

See Zinn, supra note 81, at 36 (referring to Herbert Aptheker's research). Herbert Aptheker is a controversial figure. Many

credit his book, American Negro Slave Revolts, originally published in 1949 and still in print, with bringing about a sea

change in the history of American slavery. The prevailing view prior to Aptheker's work was that the slave population

was largely docile. Black slaves accepted their fate with resigned complacency, and eruptions such as the Stono and Nat

Turner rebellions were aberrations, or so many believed. In American Negro Slave Revolts, however, Aptheker cataloged

all manner of slave insurrections -- large and small, threatened and executed -- spanning American history from the

seventeenth century to the Civil War. For our purposes, the fear of slave uprisings are more important than the uprisings

themselves, and on this there was less disagreement. As Aptheker put it: “While there is a difference of opinion as to

the prevalence of discontent amongst the slaves, one finds very nearly unanimous agreement concerning the widespread

fear of servile rebellion.” Herbert Aptheker, American Negro Slave Revolts 18 (6th ed. 1993). The controversy over

Aptheker revolves around his politics. Aptheker, a prominent member of the Communist Party of the United States and

editor of its journal on political theory, was one of Joseph McCarthy's targets in the 1950s. Anyone who cited Aptheker's

work ran a risk. During his confirmation hearings for the Supreme Court, Thurgood Marshall was grilled about whether

he knew about Aptheker's political affiliation when he cited one of his books in an appellate opinion. Although Aptheker

held a doctorate from Columbia, wrote or edited more than 80 books, and had his work praised by other historians,

he never succeeded in finding a faculty position. According to political scientist John Manley of Stanford University,

who studied Aptheker, it was Aptheker's politics that kept him from being fully accepted by the academic community.

See Jack Fisher, Shattering Sterotypes: Author-Radical Herbert Aptheker Is a Seminal Figure in Black History, Dallas

Morning News, March 6, 1994, at 34A; see also Aptheker v. Secretary of State, 378 U.S. 500, 521 (1964) (Clark, J.,

dissenting) (stating Aptheker was editor of journal Political Affairs published by Communist Party); Stephen L. Carter,

Thurgood Marshall: A Remembrance, 47 Okla. L. Rev. 5, 8 (1994) (regarding Marshall's confirmation hearing). Some

historians still believe that the black slave population was easily controlled. See, e.g., Edmund S. Morgan, American

Slavery, American Freedom: The Ordeal of Colonial Virginia 309 (1975) (arguing that free or semi-free laborers were

more dangerous than slaves and noting that no white person was killed in any slave revolts in colonial Virginia).

122

Brodie, supra note 91, at 291 (quoting Jefferson's letter to St. George Tucker dated Aug. 28, 1797).

123

See H.M. Henry, The Police Control of the Slave in South Carolina 154-55 (Negro Univ. Press 1968).

124

See John Hope Franklin, Slavery in the Martial South, in Race and History: Selected Essays 1938-1988 92, at 97 (1989);

see also Daniel J. Boorstin, The Americans: The Colonial Experience 355-56 (1958) (stating that patrol soon became

part of regular militia); Higginbotham, In the Matter of Color, supra note 93, at 259-62; Zinn, supra note 81, at 53-57

(discussing how fear of slave rebellion led to slave patrols); Michael Stauffer, Volunteer or Uniformed Companies in

the Antebellum Militia: A Checklist of Identified Companies, 1790-1859, 88 S.C. Hist. Mag. 108, 108 (1987) (noting

that legislation in South Carolina required every able-bodied white man aged 18 to 45 to serve in militia).

125

See Higginbotham, In the Matter of Color, supra note 93, at 262 (discussing establishment of militia in South Carolina).

126

See id.

127

See Zinn, supra note 81, at 55-56 (noting that fear of slave rebellion led to establishment of slave patrols, which were

staffed by hiring poor white men); Stauffer, supra note 124, at 109 (stating that South Carolina laws required every able-

bodied white male age 18 to 45 to serve in militia).

128

Higginbotham, In the Matter of Color, supra note 93, at 307; see also Franklin, Militant South, supra note 104, at 72-76

(1956) (discussing cooperation between slave patrol and militia).

129

See Higginbotham, In the Matter of Color, supra note 93, at 259-61 (stating that in 1755 and 1757 Georgia enacted

legislation regulating manner in which militia would organize and conduct slave patrols); Stauffer, supra note 124, at

111 (stating that slave patrols in South Carolina came under control of militia in 1721).

130

Higginbotham, In the Matter of Color, supra note 93, at 261-62.

131

See Henry, supra note 123, at 149-50 (stating that assembly of white male churchgoers surrounded and captured nearly

all rebellious blacks).

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

132

See id. at 149.

133

See Higginbotham, In the Matter of Color, supra note 93, at 192-93; Wood, Radicalism of the American Revolution,

supra note 89, at 317.

134

See Zinn, supra note 81, at 76 (noting that much of white population went into military service during war).

135

See id.

136

See Bellesîles, supra note 34, at 429.

137

See id. at 425, 428-31. Bellesîles writes: “Even in the heavily armed and deeply paranoid state of South Carolina, militia

officers continually expressed shock over the shortage of firearms.” Id. at 432; see also Brodie, supra note 91, at 136.

138

See Russell F. Weigley, History of the United States Army 202 (1984). During the war, a loyalist officer of the South

Carolina militia urged the British to exploit this situation by attacking the Southern states. In a letter to British authorities

he suggested that “the instant that The Kings Troops are put in motion in those Colonies, these poor Slaves would be

ready to rise upon their Rebel Masters.” Randall M. Miller, A Backcountry Loyalist Plan to Retake Georgia and the

Carolinas, 1778, 75 S.C. Hist. Mag. 207, 213 (1974)(quoting letter of Moses Kirkland). And in fact, during the war

many black slaves in Virginia joined the British side. See Brodie, supra note 91, at 111-12.

139

See infra notes 299-304 and accompanying text.

140

Halbrook, That Every Man Be Armed, supra note 21, at 61.

141

Id. at 62 (Halbrook quoting Henry, with Halbrook's emphasis).

142

See generally Wood, Radicalism of the American Revolution, supra note 89, at 3-45 (1969) (discussing Whig ideology).

143

See generally Charles Royster, A Revolutionary People at War: The Continental Army and American Character,

1775-76, at 25-53 (1979) (discussing rage militaire -- a passion for arms -- that swept colonies in 1775 but “vanished

by the end of 1776 and never returned”).

144

See Wood, Radicalism of the American Revolution, supra note 89, at 104-06, 215-20 (discussing American

Revolutionaries' faith in classical virtue).

145

See Royster, supra note 143, at 35-36 (discussing how, according to republican ideology, “the rise of a standing army

implicated the people in the corruption of the government”).

146

See id. at 17 (contrasting virtuous Americans with “British derelicts and Hessian mercenaries).

147

See generally Leckie, supra note 20, at 103-15, 145-63 (describing victory at Concord). Although the battle at Lexington

could be characterized as a loss, Americans have long perceived it to be a symbolic victory. See Robert Middlekauff,

The Glorious Cause: The American Revolution 1763-1789, at 268-73 (1982) (describing battle of Lexington). Bunker

Hill can be characterized either as a victory or a loss for revolutionary forces depending on whether one focuses on

casualties or the final outcome. Although Americans portrayed it as a victory for propaganda purposes, Howard Zinn

calls it a defeat. See Zinn, supra note 81, at 78.

148

Royster, supra note 143, at 29-30.

149

See generally Charles J. Dunlap, Jr., Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the

Second Amendment, 62 Tenn. L. Rev. 643, 658-60 (1995) (stating that militia's armed amateurs were no match for

trained British armies).

150

See Leckie, supra note 19, at 144-63 (describing Battle of Bunker Hill). Despite the name of the battle, the Americans

were actually on top of Breed's Hill. See id. at 151.

151

See id. at 161-62.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

152

See id. at 161-63. Leckie continues: “Whenever a wounded man had been taken to safety, there were, in a cowardly

dodge as old as arms, as many as twenty •volunteers' to carry him.” Id. at 162.

153

See id. at 161. Two companies did come forward, but “for every man (the American battle commander) got, he lost

three.” Id. at 162. Equally devastating was the fact that militia behind the lines refused to send gunpowder. See id. at 161.

154

See id. at 162.

155

See Royster, supra note 143, at 41 (quoting General Charles Lee's extravagant praise of militia in 1774 and 1775, and

his condemnation of militia in 1776).

156

Royster, supra note 143, at 37.

157

Bellesîles, supra note 34, at 435.

158

See Royster, supra note 143, at 59.

159

See id. at 59, 389 n.3 (quoting Washington).

160

See Leckie, supra note 19, at 294-95 (discussing incident at Fort Washington where 300 to 400 men got drunk).

161

See Royster, supra note 143, at 71. The average desertion rate of Revolutionary forces was between 20 and 25%. The

rate was lower at the end of the war when the bulk of the army consisted of long-term regulars and apparently higher

in the early years when the proportion of militia was greatest. See id.

162

See Leckie, supra note 19, at 270 (quoting Washington's letter to Congress).

163

See Samuel Elliot Morison, The Oxford History of the American People 227 (1965) (stating that logistic deficincies --

lack of food, clothes, and shoes -- led to large mutinies).

164

See id. at 239.

165

See id. at 241. “Instead of turning out to defend their country, and affording aid to our army, (the New Jersey militia)

are making their submissions as fast as they can,” Washington wrote at the time. Id.

166

See Leckie, supra note 19, at 536; Royster, supra note 143, at 282.

167

See Royster, supra note 143, at 322-23.

168

See Bellesîles, supra note 34, at 440-41; see also Leckie, supra note 19, at 292 (stating that Yankees were poor shots);

cf. Royster, supra note 143, at 33-34 (regarding revolutionary riflemen's ability to hit small targets).

169

See Bellesîles, supra note 34, at 426 (discussing U.S. history and psyche).

170

See id. (noting that gun ownership was exceptional in eighteenth and early nineteenth century).

171

Id. at 427.

172

Id. at 438-39.

173

Royster, supra note 143, at 66.

174

See, e.g., supra notes 159, 162 and accompanying text; see also Christopher Collier & James Lincoln Collier, Decision

in Philadelphia 37 (1986). Disciplinary problems were so bad that Washington asked Congress for authority to increase

the maximum punishment he could inflict for infractions such as shooting guns in camp or plundering from 100 to 500

lashes with the whip. Although Madison supported Washington's request, Congress never granted it. See Royster, supra

note 143, at 77-78.

175

See Royster, supra note 143, at 50.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

176

Brodie, supra note 91, at 137.

177

See The Federalist No. 29, at 182 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would

be attended with the most beneficial effects . . . . It would enable them to discharge the duties of the camp and of the

field with mutual intelligence and concert -- an advantage of peculiar moment in the operations of an army . . . .

Id.

178

Id.

179

See id.

180

Id. at 228-29.

181

In the South, where the militia continued to serve a critical need, ambivalence developed. After the militia disgraced

themselves a second time in the war of 1812, public jeering of the militia became so much of a problem that Southern

legislatures enacted statutes making it a crime to heckle or disrupt a militia muster. See Bellesîles, supra note 34, at 438.

182

Ammon, supra note 77, at 70.

183

See id.

184

Conor Cruise O'Brien, The Long Affair: Thomas Jefferson and the French Revolution 1785-1800, at 73 (1996)

(hereinafter O'Brien, The Long Affair). It is possible that remarks about slave control or the potential for slave

insurrection were deemed too inflammatory to record, were muted in the transcript, or were not transcribed for other

reasons. See infra notes 309-16 and accompanying text.

185

See Ammon, supra note 77, at 71.

186

See id. (stating that unlike Mason, whose advocacy for amendments prior to ratification was sincere, Henry used

amendment argument as method of preventing ratification).

187

3 Debates of the Several State Conventions, on the Adoption of the Federal Constitution 52 (Jonathan Elliot ed., 2d ed.

1891) (hereinafter 3 Elliot's Debates).

188

See Clinton Rossiter, The American Quest 1790-1860, at 104 (1971).

189

Robert Carter Nicholas posed the following rhetorical questions to the Convention:

Would it be safe to depend on militia alone without the agency of regular forces, even in time of war? Were we to be

invaded by a powerful, disciplined army, should we be safe with militia? . . . Although some people are pleased with

the theory of reliance on militia, as the sole defence of a nation, yet I think it will be found, in practice, to be by no

means adequate.

3 Elliot's Debates, supra note 187, at 389. Nicholas added: “Its inadequacy is proved by the experience of other nations.”

Id. This was as far as a member of the Convention could go. It would have been an act of both rudeness and political

folly to mention that, in fact, the inadequacy of the militia had been proved by recent American experience as well.

190

The battle of Camden took place in 1780. General Horatio Gates of the Continental Army placed Virginia and North

Carolina militia units in the center and on the right of his position. “They alone outnumbered the whole British force,”

writes historian Charles Royster. Royster, supra note 143, at 282 (1979). “But they ran without firing a shot.” Id.

191

3 Elliot's Debates, supra note 187, at 378-79.

192

A year earlier at the Constitutional Convention in Philadelphia, Luther Martin of Maryland raised the converse problem

-- the North being forced to march its militia south. Martin suggested that the slave system would unfairly burden the

Northern states because they would be bound to protect their sister states from insurrection. See Anti-Federalist Papers,

supra note 60, at 161 (quoting proceedings of Aug. 21-22, 1787). In this same exchange with Martin, John Rutledge of

South Carolina extinguished any thought that slavery might be a negotiable subject at the Constitutional Convention with

his now famous statement that “(t)he true question at present is whether the Southern States shall or shall not be parties

to the Union.” Id. Rutledge said he would be willing to exempt the Northern states from an obligation to defend the

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

Southern states from slave insurrection. See id. Although Rutledge's suggestion of granting the North an exemption from

the duty to suppress slave insurrections in the South was not acted upon by the Constitutional Convention, Maryland later

proposed a constitutional amendment providing that the “(m)ilitia not be subject to the rules of Congress, nor marched

out of the state, without the consent of the legislature of such state.” 2 The Debates on the Constitution: Federalist and

Antifederalist Speeches, Articles, and Letters During the Struggle Over Ratification 555 (1993). Query whether, by

raising the possibility of Northern militia being ordered to march to the South, Luther Martin unintentionally stimulated

fellow delegate George Mason's thinking about the reverse problem.

193

During the period of the disturbances which led to Shays's Rebellion in Massachusetts, similar protests verging on

armed rebellion over tax and debt policies occurred in New Hampshire. See David P. Szatmary, Shays' Rebellion: The

Making of an Agrarian Insurrection 78-79 (1980). For a description of Shays's Rebellion, see infra notes 418-56 and

accompanying text.

194

3 Elliot's Debates, supra note 187, at 161.

195

Id. at 379.

196

See id. at 379-80.

197

Id. at 380.

198

Id. at 381.

199

See Wood, Radicalism of the American Revolution, supra note 89, at 146.

200

See supra notes 149-81 and accompanying text.

201

See Bradford, supra note 72, at 156.

202

U.S. Const. art. I, S 10, cl. 3.

203

3 Elliot's Debates, supra note 187, at 423.

204

Id. at 421.

205

Id. at 390. Madison reiterated the same point later in the Convention, as follows:

I conceive that we are peculiarly interested in giving the general government as extensive means as possible to protect

us. If there be a particular discrimination between places in America, the Southern States are, from their situation and

circumstances, most interested in giving the national government the power of protecting its members.

Id. at 415.

206

Id. at 383.

207

Id. at 382. Madison continued:

Have we not found, from experience, that, while the power of arming and governing the militia has been solely vested

in the state legislatures, they were neglected and rendered unfit for immediate service? Every state neglected too much

this most essential object. But the general government can do it more effectually.

Id.

208

Id. at 421.

209

Id. at 386.

210

Id.

211

Id. at 590.

212

Id.

213

Id.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

214

Id.

215

See Rakove, Original Meanings, supra note 56, at 124.

216

See Banning, supra note 77, at 234.

217

3 Elliot's Debates, supra note 187, at 621.

218

Id. at 622.

219

See Banning, supra note 77, at 240 (asserting that demands for explicit guarantees was so wide spread that Federalists

were forced to promise Bill of Rights).

220

See Rakove, Original Meanings, supra note 56, at 123-24 (examining concept of ratification and Richmond Convention).

221

See 3 Elliot's Debates, supra note 187, at 629-30 (discussing extreme risk of perpetual disunion and urging proposal

of amendments).

222

See id. at 652-53.

223

See id. at 655-56.

224

There is no record of the committee proceedings. See Jean Edward Smith, John Marshall: Definer of a Nation 142 (1996)

(hereinafter Smith, Definer of a Nation).

225

There was a motion to strike the proposed amendment which held that Congress must inform each state of its quota

whenever it enacted taxes and that states may raise their quota rather than allowing the federal government to collect

the tax. The motion to delete this proposal was defeated 65 to 85. See 3 Elliot's Debates, supra note 187, at 661-63.

226

Id. at 659.

227

Id. at 660. In addition, the tenth proposed amendment read: “10th. That no soldier shall be enlisted for any longer term

than four years, except in time of war, and then for no longer term than the continuance of the war.” Id.

228

Compare, e.g., Declaration of Rights, in Louis G. Schwoerer, The Declaration of Rights, 1689 app. at 295-98 (1981)

(hereinafter Declaration of Rights) with Letters from the Federal Farmer, I and II, in Anti-Federalist Papers, supra note

60, at 256, 268; “John DeWitt,” Essay II (Oct. 27, 1787), in id. at 189, 197-98.

229

See 7 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the State, Territories, and

Colonies Now or Heretofore Forming the United States of America 3812-19 (Francis Newton Thorpe ed., 1909)

(hereinafter Thorpe's Constitutions).

230

See Smith, Definer of a Nation, supra note 224, at 142.

231

Wills, To Keep and Bear Arms, supra note 44, at 64; see also John Levin, The Right to Bear Arms: The Development

of the American Experience, 48 Chi.-Kent L. Rev. 148, 153 (1971) (noting that to “bear arms” means “to serve in the

armed forces of the state”).

232

See infra notes 265-74 and accompanying text. However, they were divided over the purpose and nature of that right.

See infra notes 265-74 accompanying text.

233

South Carolina: During debates over ratification in the South Carolina legislature in January 1788, anti-Federalist

Rawlins Lowndes noted that “the Northern States would so predominate as to divest us of any pretensions to the title of

a republic.” See 4 Debates of the Several State Conventions, on the Adoption of the Federal Constitution 272 (Jonathan

Elliot ed., 2d ed. 1891) (hereinafter 4 Elliot's Debates). He continued:

Without negroes, this state would degenerate into one of the most contemptible in the Union; and he cited an expression

that fell from General Pinckney on a former debate, that whilst there remained one acre of swamp-land in South Carolina,

he should raise his voice against restricting the importation of negroes. . . . Negroes were our wealth, our only natural

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

resource; yet behold how our kind friends in the north were determined soon to tie up our hands, and drain us of what

we had!

Id. at 272-73.

In response, Charles Pinckney, a Federalist who served as a delegate to the Constitutional Convention, did not challenge

the assumption that the North might like to interfere with the slave system. Instead, he argued that the South had made

a necessary bargain:

The honorable gentleman alleges that the Southern States are weak. I sincerely agree with him. We are so weak that by

ourselves we could not form a union strong enough for the purpose of effectually protecting each other. . . . I am of the

same opinion now as I was two years ago, when I used the expressions the gentleman has quoted -- that, while there

remained one acre of swamp-land uncleared in South Carolina, I would raise my voice against restricting the importation

of negroes. . . . We (at the Constitutional Convention) endeavored to obviate the objections that were made in the best

manner we could. . . . By this settlement we have secured an unlimited importation of negroes for twenty years. Nor is it

declared that the importation shall be then stopped; it may be continued. We have a security that the general government

can never emancipate them, for no such authority is granted; and it is admitted, on all hands, that the general government

has no powers but what are expressly granted by the Constitution, and that all rights nor expressed were reserved by the

several states. We have obtained a right to recover our slaves in whatever part of America they may take refuge, which

is a right we had not before. In short, considering all circumstances, we have made the best terms for the security of this

species of property it was in our power to make. We would have made better if we could . . . .

Id. at 283-86.

A speech delivered by Patrick Dollard later in the South Carolina ratification debates also evidences paranoia about

Northern and, therefore, federal designs. “My constituents are highly alarmed at the large and rapid strides which this

new government has taken towards despotism,” he said. Id. at 337-38. “They say it is big with political mischiefs, and

pregnant with a greater variety of impending woes to the good people of Southern States, especially South Carolina,

than all the plagues supposed to issue from the poisonous box of Pandora.” Id.

Georgia: Debates in Georgia's ratifying convention were not recorded. From the convention's journals, which recorded

motions and votes, as well as letters written by delegates, we know that after no more than three days of debate, the

delegates voted to ratify the Constitution by a vote of 26 to 0. The speed and decisiveness of the vote is attributed to the

fact that Georgia feared an impending war with the Creek Indian nation and hoped for protection from a strengthened

Union. However, one delegate expressed the view that the Constitution should be ratified with a provision requiring a

second convention a set number of years later to reconsider the interests of the Southern states, which might not be able

to adequately protect the slave trade under the constitutional framework. See Smith, To Form a More Perfect Union,

supra note 66, at 77-78 (1993).

234

South Carolina: Arguing for ratification, Robert Barnwell alluded to concerns about the Southern militia being taken

out-of-state:

In the first instance, it appeared to him that the gentleman (Rawlins Lowndes) had established, as the basis of his

objections, that the Eastern States entertained the greatest aversion to those which lay to the south, and would endeavor

in every instance to oppress them. This idea he considered as founded in prejudice, and unsupported by facts. . . . Did

(during the Revolutionary War) they demand the southern troops to the defence of the north? No!

4 Elliot's Debates, supra note 233, at 291-92

North Carolina: At the ratifying convention in Hillsborough, a delegate expressed the same fear George Mason voiced

in Richmond about the disarming of the militia. “When we consider the great powers of Congress, there is great cause

of alarm. They can disarm the militia,” he declared while arguing that an armed militia was necessary to enable the state

to resist attempts by the federal government to enforce “oppressive” laws. Id. at 203.

235

New Hampshire ratified the Constitution on June 21, 1788, four days before Virginia. See Anti-Federalist Papers, supra

note 60, at 26.

236

Irving Brant, James Madison: Father of the Constitution 1787-1800, at 229 (1950).

237

The proceedings at the New York ratifying convention in Poughkeepsie reflect the influence of the anti-Federalist

arguments advanced at Richmond, although -- having been repackaged for a Northern audience -- the arguments lacked

punch. John Lansing, a delegate from upstate New York, proposed the following constitutional amendment:

Respecting the organization and arming the militia, &c., --

Provided, That the militia of any state shall not be marched out of such state without the consent of the executive thereof,

nor be continued in service out of state, without the consent of the legislature thereof, for a longer term than six weeks;

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

and provided, that the power to organize, arm, and discipline the militia, shall not be construed to extend further than

to prescribe the mode of arming and disciplining the same.

2 Debates of the Several State Conventions, on the Adoption of the Federal Constitution 406 (Jonathan Elliot ed., 2d ed.

1891) (hereinafter 2 Elliot's Debates). The motion was seconded but never voted upon. See id. The convention finally

ratified the Constitution, but at the same time propounded an aspiratory list of amendments, including the following:

“(T)he militia of this state will not be continued in service out of this state for a longer term than six weeks, without

the consent of the legislature thereof . . . .” Id. at 411.

238

See id. at 413.

239

See generally Banning, supra note 77, at 264 (regarding Henry's pledge “to retrieve the loss of liberty and remove the

defects of that system in a constitutional way”); Brant, supra note 236, at 235 (discussing Federalists and anti-Federalists

competing for control of new Congress).

240

See Ammon, supra note 77, at 75 (explaining methods Henry used to keep Madison out of Senate and House of

Representatives).

241

See Brant, supra note 236 at 236-37 (discussing Patrick Henry's effort to re-elect James Madison to U.S. House of

Representatives so that two anti-Federalists could represent Virginia in U.S. Senate).

242

Brant, supra note 236, at 237 (discussing Patrick Henry's power over Virginia Legislature).

243

Id. (quoting Henry Lee's account).

244

See id.; Banning, supra note 77, at 270.

245

See Banning, supra note 77 at 271 (discussing inauguration of Federal Republic).

246

See id. at 270.

247

See id. at 274.

248

See Ammon, supra note 77, at 76 (noting that Monroe was presented to voters as consistent supporter of bill of rights).

249

See The Federalist No. 10 (James Madison) (containing Madison's famous statement, “In the extent and proper structure

of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government”); see

also Pauline Maier, American Scripture: Making the Declaration of Independence 196 (1997) (arguing that Madison

believed “best way to protect liberty . . . was by imposing structural limits on power”); Rakove, Original Meanings, supra

note 56, at 310-16 (explaining why Madison believed that “at the national level of government . . . a bill of rights would

prove redundant or pointless”). See generally Gordon S. Wood, The Making of the Constitution (1987) (explaining why

Madison believed that democracy was problem -- particularly in hands of state legislatures -- and that solution lay in

size and structure of national government).

250

Cf. Banning, supra note 77, at 281 (arguing that although Madison still harbored reservations, he had privately concluded

that Bill of Rights was “proper in itself”); Jack N. Rakove, James Madison and the Bill of Rights: A Broader Context,

22 Presidential Stud. Q. 667, 674 (1992) (arguing that Madison's views evolved over time but conceding that Madison

believed that principal value of bill of rights would be to reassure moderate anti-Federalists).

251

See Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 1 The Republic of Letters: The Correspondence

Between Thomas Jefferson and James Madison, 1776-1826, at 562 (James Morton Smith ed., 1995) (hereinafter

Republic of Letters). Madison wrote to Jefferson:

My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant

to be included in the enumeration. At the same time I have never thought the omission of a material defect, nor been

anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others . . .

I have not viewed it in an important light . . . .

Id. at 564.

252

Id. at 564.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

253

See, e.g., id. (explaining why Madison disfavored bill of rights). Madison wrote,

(E)xperience proves the inefficacy of a bill of rights on those occasions when its control is most needed. Repeated

violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have

seen the bill of right violated in every instance where it has been opposed to a popular current.

Id.; see also Banning, supra note 77, at 281 (noting that Madison voted against preparation of bill of rights at

Constitutional Convention).

In his reply, Jefferson noted that Madison omitted what Jefferson considered the strongest reason for enacting a bill of

rights: “(T)he legal check which it puts into the hands of the judiciary.” Letter from Thomas Jefferson to James Madison

(Oct. 17, 1788), in Republic of Letters, supra note 251, at 587.

254

See Banning, supra note 77, at 272 (quoting letter by Madison published in Virginia newspaper). Madison explained

that he had previously opposed amendments “as calculated to throw the states into dangerous contentions and to furnish

the secret enemies of the Union with an opportunity of promoting its dissolution,” but that now that circumstances had

changed “it is my sincere opinion that . . . (Congress) ought to prepare and recommend to the states for ratification the

most satisfactory provisions for all essential rights. . . . ” Id. (quoting letter by Madison which was possibly intended

for publication).

255

See id. at 273 (stating that Madison won with 57% of popular vote).

256

See Anderson, supra note 55, at 176-77 (expressing view that “Patrick Henry blocked his chances for a seat in the Senate,

and placed Madison's candidacy for the House in such jeopardy that he felt constrained to promise his constituents that

he would support amendments”).

257

See 2 Elliot's Debates, supra note 237, at 413-14; see also Rakove, Original Meanings, supra note 56, at 125-27.

258

See 4 Elliot's Debates, supra note 233, at 242-52; see also Rakove, Original Meanings, supra note 56, at 128. Rhode

Island had also refused to ratify. While one of the rationales for Rhode Island's refusal was the failure to include a bill

of rights, principally Rhode Island wanted time to pursue its own monetary policy. See McLoughlin, supra note 70,

at 102-04.

259

See Letter of James Madison to Thomas Jefferson (Aug. 10, 1788), in The Republic of Letters, supra note 251, at

547 (reflecting how Madison's concern for “opposition sensitivities” fueled framing of Bill of Rights). See generally

Banning, supra note 77, at 279-81. “I enclose . . . a circular address to the other States on the subject of amendments,

from which mischiefs are apprehended,” Madison wrote in a letter to Thomas Jefferson. “The great danger in the present

crisis,” he continued, “is that if another Convention should be soon assembled, it would terminate in discord, or in

alterations of the federal system which would throw back essential powers into the State Legislatures.” Letter of James

Madison to Thomas Jefferson (Aug. 10, 1788), in The Republic of Letters, supra note 251, at 547.

260

See Creating the Bill of Rights, supra note 87, at 80 (setting forth's Madison's remarks before House of Representatives

on June 8, 1789); see also Letter of James Madison to Thomas Jefferson (Oct. 17, 1788), in Republic of Letters, supra

note 251, at 564 (speaking of essential rights and mentioning rights of conscience specifically).

261

See Rakove, Original Meanings, supra note 56, at 310-13 (discussing Madison's commitment to religious liberty).

262

See generally id. at 330-36 (discussing Madison's reservations in adopting Bill of Rights).

263

Although there were 13 states and 13 state constitutions, there was not a complete identity between the two. Only 12

of the original 13 states had adopted constitutions (Rhode Island had not done so). The thirteenth state constitution

belonged to Vermont, which was not yet recognized as a separate state (having been claimed to belong to New York).

264

Wood, Creation of the American Republic, supra note 54, at 271.

265

Article XVII of the Massachusetts Declaration of Rights (1780) reads in full:

The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous

to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be

held in an exact subordination to the civil authority, and be governed by it.

3 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the State, Territories, and Colonies

Now or Heretofore Forming the United States of America 1892 (Francis Newton Thorpe ed., 1909).

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

266

North Carolina Constitution S XVII.

267

See 5 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the State, Territories, and

Colonies Now or Heretofore Forming the United States of America 3114 (Francis Newton Thorpe ed., 1909).

268

See 6 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the State, Territories, and

Colonies Now or Heretofore Forming the United States of America 3741 (Francis Newton Thorpe ed., 1909).

269

This language is identical in both documents.

270

See Creating the Bill of Rights, supra note 87, at 14-28. The five states, and the dates on which they formally adopted

proposals at their ratifying conventions, were: Massachusetts (Feb. 6, 1788), South Carolina (May 23, 1788), New

Hampshire (June 21, 1788), Virginia (June 27, 1788), and New York (July 26, 1788). See id. North Carolina adopted its

proposals on August 1, 1788. 4 Elliot's Debates, supra note 233, at 240-51.

271

Massachusetts and South Carolina's proposals did not contain a right to bear arms. See Creating the Bill of Rights, supra

note 87, at 14-16.

272

Id. at 17.

273

See id. at 19, 22. The pertinent part of New York's proposal reads:

That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People

capable of bearing Arms, is the proper, natural and safe defence of a free State;

That the Militia should not be subject to Martial Law, except in time of War, Rebellion or Insurrection.

Id. at 22.

274

See 4 Elliot's Debates, supra note 233, at 244.

275

See Creating the Bill of Rights, supra note 87, at 11-14.

276

Id. at 12.

277

See supra note 226 and accompanying text.

278

See supra note 272 and accompanying text; Creating the Bill of Rights, supra note 87, at 17, 19. In this respect (and in

others as well), Madison's text is also unlike that proposed by anti-Federalist dissenters at the Pennsylvania ratifying

convention. Their proposal

read:

That the people have a right to bear arms for the defence 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. . . .

The Address and Reasons for Dissent of the Minority of the Convention of Pennsylvania Speaking to their Constituents

(Dec. 18, 1787), in Anti-Federalist Papers, supra note 60, at 240.

279

The key language in the Virginia provision reads: “That the people have a right to keep and bear arms; that a well-

regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free

state . . . .” See Creating the Bill of Rights, supra note 87, at 19.

280

Id.

281

See U.S. Const. art. I, S 8, cl. 16.

282

Madison intended that the Constitution be read broadly so that grants of government authority include implied as well as

express powers. “(I)t was impossible to confine a government to the exercise of express powers, there must necessarily

be admitted powers by implication,” he told the House of Representatives. Creating the Bill of Rights, supra note 87,

at 197.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

283

See, e.g., 2 The Documentary History of the Ratification of the Constitution: Ratification of the Constitution by the

States, Pennsylvania 509-10 (Merrill Jensen ed., 1976) (setting forth remarks of John Smilie at Pennsylvania ratifying

convention).

284

See Creating the Bill of Rights, supra note 87, at 19.

285

Id. at 12.

286

See infra notes 140-81 and accompanying text.

287

See Creating the Bill of Rights, supra note 87, at 12, 19.

288

See Banning, supra note 77, at 272 (quoting Madison).

289

See James H. Hutson, The Creation of the Constitution: The Integrity of the Documentary Record, 65 Tex. L. Rev. 1,

36 (1986).

290

See id. at 36-38.

291

See Creating the Bill of Rights, supra note 87, at 30, 38.

292

See id. at 46.

293

See id. at 30.

294

Id. at 183.

295

See id. at 184.

296

See id. at 12. The right to bear arms provision was the fourth of the Amendments to the Constitution adopted by

Congress on September 28, 1789. Respectively, the First and Second Amendments would have changed the number

of Representatives, and required changes in congressional salaries to only take effect after the next election of

Representatives. These amendments were not ratified by the states. To avoid confusion, however, the right to bear arm's

provision is referred to as the Second Amendment even when it is being discussed in the context of the amendments

adopted on September 28, 1789.

297

Anderson, supra note 55, at 103.

298

See generally id. at 102-06; Brant, supra note 236, at 172-81; Finkelman, Slavery and the Founders, supra note 86, at

1-33; Morgan, Birth of the Republic, supra note 56, at 141-42; Rakove, Original Meanings, supra note 56, at 72-75.

299

See U.S. Const. art. IV, S 2, cl. 2.

300

See U.S. Const. art. I, S 9, cl. 1.

301

See U.S. Const. art. I, S 2, cl. 3.

302

Some considered the Ninth and Tenth Amendments part and parcel of the slavery compromise as well. For example, in

a letter dated August 10, 1789, William Loughton Smith of South Carolina, a member of the First Congress, advised

Edward Rutledge that he would support these amendments because, if adopted, “they will go a great way in preventing

Congress from interfering with our negroes after 20 years or prohibiting the importation of them. Otherwise, they may

even within 20 years by a strained construction of some power embarrass us very much.” Letter of William L. Smith to

Edward Rutledge (Aug. 10, 1789), in Creating the Bill of Rights, supra note 87, at 273.

303

As evidence experts understand, however, circumstantial evidence can be just as strong and compelling as direct evidence

and sometimes even more so. See John Henry Wigmore, 1A Evidence in Trials at Common Law S 26, at 961 (rev. by

Petter Tillers 1983); see also Graham C. Lilly, An Introduction to the Law of Evidence 49 (3d ed. 1996).

304

Hutson, supra note 289, at 36-37. Debates in the House were transcribed by Thomas Lloyd, who also transcribed the

Pennsylvania and Maryland ratifying conventions. Everyone, including first-hand participants such as James Madison

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

and Elbridge Gerry, seemed to agree that Lloyd's transcripts were wholly incompetent. See id. at 35-38. Lloyd's

transcripts are “not to be relied on,” wrote Madison. Id. at 38 (quoting Madison). “He was indolent and sometimes filled

up blanks in his notes from memory or imagination.” Id.

305

David Robertson, the reporter for the Virginia ratifying convention, who was later hired and fired by the North Carolina

ratifying convention as well, was not highly regarded. Madison said that when he reviewed Robertson's transcripts he

found some passages “to be defective, others obscure, if not unintelligible, others again which must be more or less

erroneous.” Id. at 23.

306

Id. at 24 (quoting Gerry).

307

The word “slavery” first appeared in the Thirteenth Amendment, adopted in 1865.

308

Paul Finkelman, Intentionalism, the Founders, and Constitutional Interpretation, 75 Tex. L. Rev. 435, 447 (hereinafter

Finkelman, Constitutional Interpretation) (1996).

309

Id. at 446.

310

For example, James Iredell, who had served as a delegate to the Constitutional Convention, told the North Carolina

ratifying convention: “The northern delegates, owing to their particular scruples on the subject of slavery, did not choose

the word slave to be mentioned.” See 4 Elliot's Debates, supra note 233, at 176.

311

William Patterson, who represented New Jersey at both the Constitutional Convention and the First Congress, noted

that, even under the Articles of Confederation, Congress “had been ashamed to use the term • Slaves' & had substituted

a description.” See 1 Farrand's Records, supra note 77, at 561. But see Finkelman, Constitutional Interpretation, supra

note 308, at 445 (arguing that Founders used euphemisms instead of words “slave” and “slavery” in Constitution “not

out of embarrassment, but because the delegates self-consciously believed they had to hide what they were doing to

win ratification”).

312

George Mason told his fellow delegates to the Constitutional Convention that having slaves was “evil” and that “(e)very

master of slaves is born a petty tyrant.” 2 The Records of the Federal Convention of 1787, at 370 (Max Farrand ed.,

1911) (hereinafter 2 Farrand's Records). How did this evil come about? “This infernal trafic originated in the avarice of

British Merchants. The British Govt. constantly checked the attempts of Virginia to put a stop to it,” Mason explained.

Id. Mason believed others were to blame as well: “He lamented that some of our Eastern brethren had from a lust of

gain embarked in this nefarious traffic.” Id. Mason made his remarks to persuade his colleagues to end the African

slave trade, which was not in the economic interests of slave exporting Virginia. However, within the state, he staunchly

defended the institution of slavery itself. See Bradford, supra note 72, at 152; Finkelman, Slavery and the Founders,

supra note 86, at 24.

313

Thomas Jefferson is the most famous example. David Brion Davis writes that Jefferson experimented with and refined

his rhetoric regarding his contempt for slavery. Davis wrote:

Since (Jefferson's replies to questions about his belief in slavery) became so standardized, it is not unfair to conflate

a number of examples: there was not “a man on earth” who more “ardently desired” emancipation or who was more

prepared to make “any sacrifice” to “relieve us from this heavy reproach, in any

practicable way”, but -- and Jefferson's “hints” deserve underscoring -- the public mind needed “ripening” and would

not yet “bear the proposition.”

See O'Brien, The Long Affair, supra note 184, at 270 (quoting Davis). Jefferson's most famous statements along these

lines are probably those in his Notes on the State of Virginia, in which he bemoaned the blight of slavery. See Brodie,

supra note 91, at 49-50. Slavery, he wrote, produced “the most unremitting despotism on the one part, and degrading

submissions on the other.” See O'Brien, The Long Affair, supra note 184, at 259-60 (quoting Jefferson).

Both Jefferson and Mason owned hundreds of slaves. See Bradford, supra note 72, at 156 (noting that Mason owned

300 slaves); and Finkelman, Slavery and the Founders, supra note 86, at 127-33, 200 n.97 (observing that during his

lifetime Jefferson owned between 385 to 500 slaves and, despite many opportunities to do so, freed only eight).

314

When in later years they became Presidents, Washington and Jefferson both consciously avoided mentioning the subject

of slavery as much as possible. “I was not inclined to express my sentiments on the merits of the question,” Washington

recorded in his diary. Matthew T. Mellon, Early American Views on Negro Slavery 71 (1934). ”I have most carefully

avoided every public act or manifestation on that subject,” noted Jefferson. Richard K. Matthews, The Radical Politics

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

of Thomas Jefferson 67 (1984); see also Mellon, supra at 8-9, 82-83 (regarding Franklin's and John Adams's reticence

to publicly discuss slavery).

315

Madison said:

It seemed now to be pretty well understood that the real difference of interests lay, not between the large & small but

between the N. & Southn. States. The institution of slavery & its consequences formed the line of discrimination.

2 Farrand's Records, supra note 312, at 9-10. Pierce Butler of South Carolina said he “considered the interests . . . (of

the Northern and Southern states) to be as different as the interests of Russia and Turkey.” Id. at 451.

316

Malcolm, supra note 23.

317

Randy E. Barnett & Don B. Kates, Under Fire: The New Consensus on the Second Amendment, 45 Emory L.J. 1139,

1187 (1996); see also Robert J. Cottrol and Raymond T. Diamond, The Fifth Auxiliary Right, 104 Yale L.J. 995 (1995)

(praising Malcolm's book); Nelson Lund, The Past and Future of the Individual's Right to Arms, 31 Ga. L. Rev. 1, 6

(1996) (praising Malcolm's book); Glenn Harlan Reynolds, A Line of Defense, A.B.A. J., Aug. 1994, at 94 (reviewing

and praising Malcolm's book).

318

Book Review, Am. Rifleman, April 1994, at 27; see also Wayne LaPierre, Guns, Crime, and Freedom 14-15 (1994).

LaPierre is the chief executive officer of the NRA.

319

See Malcolm, supra note 23, at iv.

320

Malcolm's book, To Keep and Bear Arms: The Origins of an Anglo-Saxon Right, has won acclaim outside the gun

community as well. Justice Antonin Scalia has pronounced it to be an “excellent study.” Antonin Scalia, A Matter of

Interpretation: Federal Courts and the Law 136-37 n.13 (1997). Scalia is impressed that Malcolm, in his words, “is not a

member of the Michigan Militia, but an Englishwoman.” Scalia may be right about Malcolm not being a member of the

Michigan Militia, but it is unclear why he believes her to be an Englishwoman. Perhaps it is because the institution at

which she teaches, Bentley College, sounds as if it might be a part of Oxford or Cambridge University. Bentley College,

however, is located in Waltham, Massachusetts.

321

Malcolm, supra note 23, at 162.

322

Id.

323

Malcolm writes: “While the right of subjects to have arms had been singled out as one of the •true, ancient, and

indubitable' rights to be included in the Declaration of Rights, it was neither true, ancient, nor indubitable. The

Convention members themselves were its authors.” Id. at 115; see also id. at 9 (stating that for 500 years before

Declaration of Rights, Englishmen did not have explicit right to keep weapons for either peace keeping or self-defense);

id. at 28 (arguing that provision marked final shift from private ownership of arms as political duty to right to have

arms for individual defense).

324

See id. at 9-10, 80.

325

See id. at 26-27.

326

See id. at 28.

327

See id. at 35-36.

328

See id. at 43.

329

Parliament was then technically sitting as a Convention. See infra note 356 and accompanying text.

330

Thomas Babinton Macaulay writes:

Not a single new right was given to the people. The whole English law, substantive and adjective, was, in the judgment

of all the greatest lawyers, of Holt and Treby, of Maynard and Somers, exactly the same after the Revolution as before it.

2 Macaulay's History of England 377-78 (1906).

G. M. Trevelyan writes:

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

The Declaration of Right was, in form at least, purely conservative. It introduced no new principle of law. . . . For the

Convention had wisely decided that alternations in the existing laws would require time for debate, and not another

day could be spared before the throne was filled, without great risk to the public safety. Therefore the Declaration of

Right had been framed as a mere recital of those existing rights of Parliament and of the subject, which James had

outraged, and which William must promise to observe. All further changes, however pressing their need, must wait till

Parliament should have time to discuss and pass them, and till there was a King to give them statutory force by royal

assent to new laws.

J.M. Trevelyan, The English Revolution 1688-1689, at 79-80 (1938); see also 6 The New Cambridge Modern History

208 (J.S. Bromley ed., 1970) (hereinafter Bromley).

Lois G. Schwoerer argues that despite the Declaration's claim to the contrary, it was a radical reforming document, and

that eight of the 13 enumerated rights were not undisputed or ancient. However, she lists article 7, the right to have

arms provision, as among those that “reaffirmed ancient law.” Lois G. Schwoerer, The Declaration of Rights, 1689,

at 78 (1981).

331

Declaration of Rights, supra note 228.

332

See, e.g., Trevelyan, supra note 330, at 7.

333

See Bromley, supra note 330, at 193-94; Malcolm, supra note 23, at 93-94.

334

Bromley, supra note 330, at 194.

335

See id. at 197.

336

See Trevelyan, supra note 330, at 26.

337

See Bromley, supra note 330, at 194; Malcolm, supra note 23, at 96.

338

See Bromley, supra note 330, at 196.

339

See Malcolm, supra note 23, at 95; Trevelyan, supra note 330, at 15-16.

340

See Bromley, supra note 330, at 199-200; Goldwin Smith, A Constitutional and Legal History of England 364 (1990)

(hereinafter Smith, Legal History of England); Malcolm, supra note 23, at 100; Trevelyan, supra note 330, at 37-39.

341

See Smith, Legal History of England, supra note 340, at 364.

342

See id.

343

See id. at 354.

344

See Malcolm, supra note 23, at 62.

345

See id. at 62, 85, 92.

346

See id. at 102-06.

347

See Bromley, supra note 330, at 196 n.2.

348

See Malcolm, supra note 23, at 109-110; Smith, Legal History of England, supra note 340, at 364-65; Trevelyan, supra

note 330, at 46-49.

349

Some believed the Queen gave birth to a girl, and that Catholics successfully executed a plot to substitute a boy and

provide the King with a successor. See Bromley, supra note 330, 201-02; see also Malcolm, supra note 23, at 110;

Trevelyan, supra note 330, at 49.

350

See Malcolm, supra note 23, at 109-13; Trevelyan, supra note 330, at 16-18.

351

See Bromley, supra note 330, at 199, 204 (stating James dissolved Parliament on July 12 and issued writs for new

elections to new Parliament convening on December 7).

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

352

See Malcolm, supra note 23, at 111.

353

See Bromley, supra note 330, at 204.

354

See id. at 205; Malcolm, supra note 23, at 112.

355

See Malcolm, supra note 23, at 112.

356

See Bromley, supra note 330, at 206; Smith, Legal History of England, supra note 340, at 366.

357

See Smith, Legal History of England, supra note 340, at 367.

358

Schwoerer, supra note 330, at 282-83. The quid pro quo was implied. William was told that it would be politically

disadvantageous to reject the Declaration. See id.

359

See Smith, Legal History of England, supra note 340, at 366 (stating that Convention met on Jan. 22, 1689).

360

See supra note 342 and accompanying text.

361

See supra notes 343-46 and accompanying text.

362

Thomas Macaulay writes:

Unhappily the Church had long taught the nation that hereditary monarchy, alone among our institutions, was divine and

inviolable; that the right of the House of Commons to a share in the legislative power was a right merely human, but that

the right of the King to the obedience of his people was from above . . . that the rule which called the princes of the blood

royal to the throne in order of succession was of celestial origin, and that any Act of Parliament inconsistent with that rule

was a nullity. . . . Thus the Convention had two great duties to perform. The first was to clear the fundamental laws of the

realm from ambiguity. The second was to eradicate from the minds, both of the governors and of the governed, the false

and pernicious notion that the royal prerogative was something more sublime and holy than those fundamental laws.

2 Macaulay's History of England, supra note 330, at 377.

Schwoerer writes that the ideas animating the Declaration of Rights “were radical in the sense that they were on the left

hand side of the essential issue of the seventeenth century -- whether king or Parliament should exercise sovereignty.”

Schwoerer, supra note 330, at 286.

363

Declaration of Rights, supra note 228, art. 1.

364

Id. art. 4.

365

Four of the 13 articles of the Declaration of Rights deal with the rights of subjects rather than of Parliament. One of

these (article 5) protects the right of subjects to petition the Crown; the other three (articles 10, 11 and 12) all involve

procedures of criminal law. Rakove writes: “The Declaration asserted both parliamentary and popular rights; but its

crucial feature was that all the rights it proclaimed were to be protected against abuse by the Crown, the great and even

sole danger to English rights and liberties.” Rakove, Original Meanings, supra note 56, at 296.

366

Declaration of Rights, supra note 228, art. 7.

367

Malcolm, supra note 23, at 120.

368

Id.

369

See id. at 9; see also supra note 323 and accompanying text.

370

See Malcolm, supra note 23, at 9.

371

See Bromley, supra note 330, at 208 n.1.

372

See id. Presumably, Parliament did not care if the King or the mayor of London, disarmed Catholics. In fact, the Mayor

was already in the process of disarming the Catholics. See supra note 355 and accompanying text.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

373

See Schwoerer, supra note 330, at 74.

374

Id. at 77.

375

Malcolm, supra note 23, at 165.

376

Id.

377

William Geldart, Introduction to English Law 3 (10th ed. 1991); see also Smith, Legal History of England, supra note

340, at 514.

378

See generally Rakove, Original Meanings, supra note 56, at 296-97 (describing how American colonists drew upon

settlement of Glorious Revolution in demanding that colonial assemblies have same division of authority with Crown

as that guaranteed to Parliament in Declaration of Right).

379

See Garry Wills, Inventing America: Jefferson's Declaration of Independence 53-54 (1978) (hereinafter Wills, Inventing

America).

380

See Schwoerer, supra note 330, at 289 (arguing that Declaration of Rights “had a direct influence on the American

Revolution” and American Bill of Rights); Maier, supra note 249, at 51 (arguing that Declaration of Rights was “for

the colonists a sacred text”).

381

See Schwoerer, supra note 330, at 289-90. Compare U.S. Const. amend. VIII with Declaration of Rights, supra note

228, art. 10. (demonstrating similarities between Eighth Amendment and article 10 of the Declaration of Rights). In

addition, the right to petition the government guaranteed by the First Amendment is clearly drawn from article 5 of the

Declaration. Compare U.S. Const. amend. I with Declaration of Rights, supra note 228, art. 5.

382

See Jo Thomas, The Oklahoma Bombing: The Overview; McVeigh Guilty on All Counts in the Oklahoma City Bombing;

Jury to Weigh Death Penalty, N.Y. Times, June 3, 1997, at A1.

383

“Thus always to tyrants.” Horowitz, et. al., Notebook, Time, June 16, 1997, at 15.

384

Id.

385

See Sandy Banisky, McVeigh Defense Focuses on Rage; Jury Sees Tapes of Waco Fire in Bid to Explain Motives, Balt.

Sun, June 11, 1997, at 1A.

386

See, e.g., Halbrook, That Every Man Be Armed, supra note 21, at 197 (arguing that Founders “regarded arms possession

as a fundamental right for protection against both private and official aggression, such as that sanctioned under color

of law or committed by state agents”). The problem with insurrectionist theory is also quite simple. Who is to decide

whether the government has fallen into the hands of traitors or tyrants? Obviously, that decision cannot be made through

the carefully constructed procedures of representative democracy because, by definition, those mechanisms may be

controlled by the traitors themselves. Insurrectionists believe the people must decide for themselves. But who are “the

people”? Any group that decides for itself that the government is controlled by traitors? And who is “the government”

for that matter? In a representative democracy the government is composed of officials chosen by a majority of voters.

Thus, the conceptual division between “the people” and “the government” is a false dichotomy.

387

Josh Sugarmann writes: “During the turbulence of the 1960s, the two contrasting faces of the NRA came into focus:

the smiling, benevolent sportsman and the fevered, angry Second Amendment fundamentalist.” Sugarmann, supra note

29, at 50 (1992). Sugarmann's book is the best available history both of the NRA generally and the “Cincinnati Revolt”

when hard-liners rose to power.

388

See James William Gibson, Warrior Dreams: Violence and Manhood in Post-Vietnam America 17 (1995).

389

See id. at 30-31.

390

Id. at 18.

391

Id. at 34.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

392

First Blood (Carolco Pictures 1982) (involving National Guard's manhunt of Vietnam War veteran John Rambo against

background of official treachery and betrayal).

393

Death Wish (Paramount Pictures 1974) (portraying bleeding-heart liberal's turn to vigilantism as only way to combat

rising crime and decadence in New York City after murder of his wife and rape of his daughter).

394

Commando (20th Century Fox 1985) (involving kidnapping of former special commando strike force colonel's

daughter).

395

See Gibson, supra note 388, at 69.

396

Dirty Harry (Warner Bros. 1971) (involving character of Inspector Harry Callahan and his unconventional attempt to

fight crime in increasingly violent and decadent New York City, with officials, for reasons of personal aggrandizement

or professional incompetence, often frustrating law enforcement efforts).

397

Waterworld (MCA Universal 1995) (involving character of mutated human and his attempt to find land in future where

Earth is covered by water and civilization has collapsed).

398

Twelve Monkeys (MCA Universal 1995) (involving man sent back from plague-ridden future to stop mysterious

underworld group from destroying civilization).

399

The Terminator (Live Entertainment 1984); Terminator 2: Judgement Day (Carolco Pictures 1991) (involving fight

between small band of humans and evil machines in world of chaos following nuclear holocaust unleashed by machines).

400

Alien (20th Century Fox 1979); Aliens (20th Century Fox 1986); Alien 3 (20th Century Fox 1992) (involving battles

between space aliens and humans who have been betrayed by leaders who -- for personal profit -- are attempting to

capture rather than destroy evil and uncontrollable aliens).

401

Mad Max (Orion Pictures 1979); The Road Warrior (Warner Bros. 1982); Mad Max Beyond Thunderdome (Kennedy

Miller Productions 1985) (portraying brutal life in post-World War III world).

402

Terminello v. Chicago, 337 U.S. 1, 37 (1949)(Jackson, J., dissenting).

403

Levinson, supra note 45, at 656.

404

The Declaration of Independence para. 2 (U.S. 1776).

405

See Levinson, supra note 45, at 656.

406

See id. at 658 (adopting Ronald Dworkin's argument).

407

Conor Cruise O'Brien, an Irish legislator and diplomat, is a public intellectual of international reputation. He is the author

of more than 20 books. See O'Brien, The Long Affair, supra note 184, at iv.

408

See id. at 301-25. An abbreviated version of O'Brien's book was published. See O'Brien, Thomas Jefferson, supra note

101, at 53.

409

See O'Brien, The Long Affair, supra note 184, at 315-25.

410

O'Brien does not use the term “insurrectionist,” but says that Jefferson “was in the grip of a fanatical cult of Liberty,

seen as an absolute, to which it would be blasphemous to assign limits” and that he was “intoxicated with what Edmund

Burke called •the wild gas of liberty.”' Id.

411

Id. at 313.

412

See supra note 384 and accompanying text.

413

See Republic of Letters, supra note 251, at 439.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

414

See Brodie, supra note 91, at 205, 208 (discussing Jefferson's correspondence with Smith). Jefferson became close to

the Adamses when they were all in Paris together. See id. at 239-44.

415

See Republic of Letters, supra note 251, at 439.

416

See Zinn, supra note 81, at 92.

417

See id. at 92-94.

418

See Szatmary, supra note 193, at 19-36 (discussing economic state of United States at time of Shays's Rebellion).

419

See id. at 19-20.

420

See id. at 29.

421

See id.

422

See id. at 33-35.

423

See id. at 49.

424

See id. at 92.

425

See Zinn, supra note 81, at 92.

426

See id. at 93.

427

See Middlekauff, supra note 147, at 226 (describing Boston Tea Party).

428

See id. at 268-73 (describing battles of Lexington and Concord).

429

See Zinn, supra note 81, at 92.

430

See id. at 93.

431

See id.

432

Brodie, supra note 91, at 241 n.55 (quoting Jefferson's letter to William Stephens Smith).

433

Letter from Jefferson to Madison (Jan. 30 and Feb. 5, 1787), in Republic of Letters, supra note 251, at 460, 461.

434

Id.

435

Id.

436

See id. at 438-39.

437

Id.

438

See Letter of James Madison to Thomas Jefferson (Mar. 19, 1787), in Republic of Letters, supra note 251, at 469, 473.

439

See Republic of Letters, supra note 251, at 439.

440

See Brodie, supra note 91, at 234, 320-21 (stating that Jefferson left for France in July 1784 and returned in December

1789).

441

See 6 Douglas Southall Freeman, George Washington: A biography 70-73 (1954).

442

1 Albert J. Beveridge, The Life of John Marshall 301 (1916) (quoting Washington).

443

Freeman, supra note 441, at 72 (quoting Washington).

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

444

Forrest McDonald, Alexander Hamilton: A Biography 102 (1979) (quoting Hamilton); see also Robert A. Hendrickson,

The Rise and Fall of Alexander Hamilton (1981).

445

See Carl Van Doren, Benjamin Franklin 742-43 (1938).

446

Id. at 743 (quoting Franklin).

447

Beveridge, supra note 442, at 302 (quoting Marshall).

448

See id. at 300; see also Szatmary, supra note 193, at 123.

449

See Zinn, supra note 81, at 92.

450

See George Athal Billias, Elbridge Gerry: Founding Father and Republican Statesman 150 (1976).

451

See id. at 151. Patrick Henry, who was most inclined to sympathize with the Shaysites due to his background and

ideology, remained silent on the matter. See Henry Mayer, A Son of Thunder: Patrick Henry and the American Republic

374-75 (1986).

452

See Szatmary, supra note 193, at 115.

453

See Wills, Inventing America, supra note 379, at 51-52.

454

Id. (quoting John Adams).

455

See id. at 51.

456

Wood, Creation of the American Republic, supra note 54, at 12 (quoting unnamed revolutionaries).

457

According to Benjamin Franklin, the process of developing the American system of governance was not the methodical

work of a small group of like-minded individuals but more like a game with many players. “(T)heir ideas so different,

their prejudices so strong and so various, and their particular interests, independent of the general, seeming so opposite,

that not a move can be made that is not contested.” Id. at 593 (quoting Franklin).

458

See Halbrook, That Every Man Be Armed, supra note 21, at 43, 45, 53, 54, 58, 90, 94, 101, 122, and 166.

459

See Malcolm, supra note 23, at 12, 71, 86, 130, 134, 142-43, 144, 145, 150, 157, 160, 162, 165, 166, 167, 172, and 176.

460

See LaPierre, supra note 318, at 24.

461

See Malcolm, supra note 23, at 142.

462

LaPierre, supra note 318, at 24.

463

Though partial and defective, 1557 sets of Blackstone's Commentaries were sold in America, where there was a great

demand for a readable and relatively concise summary of English law. See Lawrence C. Friedman, A History of

American Law 21, 102 (2d ed. 1985).

464

See Wood, Creation of the American Republic, supra note 54, at 14.

465

See id. at 8.

466

See 1 William Blackstone, Commentaries *125.

467

Id. *136.

468

The first four he described as the “constitution, powers, and privileges of parliament,” the “limitation of the king's

prerogative,” the right “of applying to the courts of justice for redress of injuries,” and “the right of petitioning the king,

or either house of parliament, for the redress of grievances,” and he defined these in some detail as well. See id. *136-39.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

469

Id. *139.

470

See id. *139.

471

Malcolm, supra note 23, at 143.

472

See, e.g., 1 William Blackstone, Commentaries *122-23 (explaining English view that absolute rights and civil liberty

are preserved through Parliament's laws); Wood, Creation of the American Republic, supra note 54, at 24 (describing

American view that civil liberty is preserved through ability of society to share in government and lawmaking). The

American view was shared by Alexander Hamilton, Richard Price, and Benjamin Church. See id.

473

See 1 William Blackstone, Commentaries *142.

474

See id. *142.

475

Wood, Creation of the American Republic, supra note 54, at 24 (quoting Benjamin Church). See also id. at 61-62.

I do not mean to suggest that Blackstone, or others, believed there was nothing to personal liberty but living in a

representative democracy. Nor did Blackstone see Parliament as the fountain of liberty, for he was a proponent of

natural law. Nevertheless, Blackstone considered Parliament both the principal protector and definer of liberty. He was

ambivalent about whether parliamentary encroachments on natural rights were possible, or if possible, whether and

to what degree Parliament was subject to legal restriction. For example, Blackstone stated that only Parliament could

suspend habeas corpus “for a short and limited time, to imprison suspected persons without giving any reason for so

doing.” 1 William Blackstone, Commentaries *132.

476

1 William Blackstone, Commentaries *145.

477

Id. *156.

478

See id. *157. It may also be noted Blackstone wrote that riding or going armed with dangerous of unlawful weapons

was a crime against the public peace. 4 William Blackstone, Commentaries *149.

479

See Wood, Creation of the American Republic, supra note 54, at 19, 23.

480

The Federalist No. 46 (James Madison).

481

See Halbrook, That Every Man Be Armed, supra note 21, at 67.

482

See, e.g., id. at 67-68.

483

Rossiter, supra note 53, at viii.

484

Id. at vii.

485

See Banning, supra note 77, at 396-402 (arguing that Madison's views changed as he was working on The Federalist

Papers); Rossiter, supra note 53, at vii, xv (noting that some have called The Federalist “a lawyer's brief”); Rakove,

Original Meanings, supra note 56, at 391 n.6 (regarding scholarship on The Federalist).

486

Banning, supra note 77, at 400 (quoting comment made by Jefferson on November 18, 1788).

487

See The Federalist No. 45 (James Madison).

488

See id.

489

The Federalist No. 46 (James Madison).

490

Id.

491

The Federalist No. 45 (James Madison).

492

See Banning, supra note 77, at 188, 396-97.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309

493

See The Federalist No. 29 (Alexander Hamilton).

494

See supra notes 249-253 and accompanying text.

495

Banning, supra note 77, at 400.

496

Id.

497

The Federalist No. 51 (James Madison).

498

David C. Williams, The Militia Movement and Second Amendment Revolution: Conjuring with the People, 81 Cornell

L. Rev. 879, 896 (1996).

499

According to Kenneth S. Stern, in 1995, private militia groups existed in at least 35 states. Kenneth S. Stern, A Force

Upon the Plain: The American Militia Movement and the Politics of Hate 96 (1996).

500

Halbrook, That Every Man Be Armed, supra note 21, at 8.

501

Amar, Bill of Rights as a Constitution, supra note 46, at 1166. Amar also writes: “Nowadays, it is quite common to

speak loosely of the National Guard as •the state militia,' but 200 years ago, any band of paid, semiprofessional, part-

time volunteers, like today's Guard, would have been called •a select corps' or •select militia' -- and viewed in many

quarters as little better than a standing army.” Id. at 166. However, that is not what Alexander Hamilton thought when,

writing in The Federalist Papers, he made it quite clear that the Constitution gives Congress the authority to organize

the militia as it sees fit, adding: “What plan for the regulation of the militia may be pursued by the national government

is impossible to be foreseen.” The Federalist No. 29 (Alexander Hamilton). Stressing that he is offering his personal

opinion, Hamilton goes on to state that he would advise Congress to opt for a “select corps of moderate size.” Id.

502

Malcolm, for example, writes:

The customary American militia necessitated an armed public, and Madison's original version of the amendment, as well

as those suggested by the states, described the militia as either “composed of” or “including” the body of the people. A

select militia was regarded as little better than a standing army. The argument that today's National Guardsmen, members

of a select militia, would constitute the only persons entitled to keep and bear arms has no historical foundation. . . .

(T)he amendment guaranteed the right of “the people” to have arms not be infringed. Whatever the future composition

of the militia, therefore, however well or ill armed, was not crucial because the people's right to have weapons was to

be sacrosanct.

Malcolm, supra note 23, at 162-63.

Incidently, Malcolm is wrong when she states that Madison's original proposal described the militia as being composed

of or including the body of the people. It did not. See supra note 276 and accompanying text. Malcolm, herself, accurately

sets forth Madison's draft just three pages before she misdescribes it.

503

See The Daily Advertiser, 9 June 1789, in Creating the Bill of Rights, supra note 87, at 63 (reflecting Madison's remarks

in House of Representatives on June 8, 1789, stating that “(h)e had no design to propose any alterations which in the view

of the most sanguine friends to the constitution could affect its main structure or principles, or do it any possible injury”).

504

When construing the Constitution we must read “the whole instrument” and give every word “its due force, and

appropriate meaning.” Wright v. U.S., 302 U.S. 583 (1937).

505

Amar, Bill of Rights as a Constitution, supra note 46, at 1136.

506

Id. at 1205.

31 UCDLR 309

End of Document

Works.