The NEW History of the 2nd.Amend.

[Rod Martin]

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

Synopsis

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

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

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

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

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

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

Madison won the election, and he went to Congress politically committed to supporting a bill of rights. When he drafted that document, he included a provision that with minor modifications became what is now the Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

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

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


All contents � 1998 Violence Policy Center

[Rod Martin]

A New Champion for the American Left




Carl T. Bogus
Professor of Law
J.D., Syracuse University
A.B., Syracuse University

Professor Bogus’ interests include: (1) Political Ideology. Professor Bogus is interested in modern American political ideology and how it affects public policy and law. (2) Torts and the Civil Justice System. Professor Bogus routinely teaches Torts and Products Liability. (3) Gun Control/Second Amendment. Professor Bogus proposed the thesis that James Madison wrote the Second Amendment to ensure that the federal government could not subvert the slave system by disarming the militia, on which the South relied for slave control. Professor Bogus has testified before Congress and spoken about these topics across the country. In addition to books and law reviews, his writings appear in opinion journals and newspapers, including The Nation, American Prospect, USA Today, Los Angeles Times, Boston Globe, Washington Times, and the Providence Journal. He blogs at http://www.carltbogus.com/edmund-a-blog.

Selected Publications
Books

Buckley: William F. Buckley, Jr. and the Rise of American Conservativism (New York: Bloomsbury Press, 2011)

Why Lawsuits are Good For America: Disciplined Democracy, Big Business, and the Common Law (New York: NYU Press, 2001)

The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms (New York: New Press, 2001) (Ed.)

Articles

Heller and Insurrectionism, 59 Syracuse Law Review 255 (2008)

Gun Control and America's Cities: Public Policy and Politics, 1 Albany Government Law Review 440 (2008)

Rescuing Burke, 72 Missouri Law Review 387 (2007)

Fear-Mongering Torts and the Exaggerated Death of Diving, 28 Harvard Journal of Law and Public Policy 17 (2004)

The Hidden History of the Second Amendment, 31 U.C. Davis Law Review 309 (1998)

The Third Revolution in Products Liability, 72 Chicago-Kent Law Review 3 (1996)

The Death of an Honorable Profession, 71 Indiana Law Journal 911 (1996)

[Grumpy]

Rod that Professor has a fitting name, Bogus


A Well Regulated Militia?
From and by: Ken kiger@northstate.net

Lost in the gun rights debate, much to the detriment of American freedom, is the fact that the Second Amendment is in fact an "AMENDMENT". No "Articles in Amendment" to the Constitution, more commonly referred to as the Bill of Rights, stand alone and each can only be properly understood with reference to what it is that each Article in Amendment amended in the body of the original Constitution. It should not be new knowledge to any American the Constitution was first submitted to Congress on September 17, 1787 WITHOUT ANY AMENDMENTS. After much debate, it was determined that the States would not adopt the Constitution as originally submitted until "further declamatory and restrictive clauses should be added" "in order to prevent misconstruction or abuse of its (the Constitutions) powers". (This quote is from the Preamble to the Amendments, which was adopted along with the Amendments but is mysteriously missing from nearly all modern copies.) The first ten Amendments were not ratified and added to the Constitution until December 15, 1791.

In this Light:

"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." What provisions of the original Constitution is it that the Second Amendment is designed to "amended"?

THE SECOND AMENDMENT IS AMENDING THE PROVISIONS IN THE ORIGINAL CONSTITUTION APPLYING TO THE "MILITIA". The States were not satisfied with the powers granted to the "militia" as defined in the original Constitution and required an amendment to "prevent misconstruction or abuse of its powers. "(Again quoting from the Preamble to the Amendments.)

What was it about the original Constitutional provisions concerning the "Militia" that was so offensive to the States?

First understand that the word "militia" was used with more than one meaning at the time of the penning of the Constitution. One popular definition used then was one often quoted today, that the "Militia" was every able bodied man owning a gun. As true as this definition is, it only confuses the meaning of the word "militia" as used in the original Constitution that required the Second Amendment to correct. The only definition of "Militia" that had any meaning to the States demanding Amendments is the definition used in the original Constitution. What offended the States then should offend "People" today:

"Militia" in the original Constitution as amended by the Second Amendment is first found in Article 1, Section 8, clause 15, where Congress is granted the power:

"To provide for the calling forth the MILITIA to execute the Laws of the Union, suppress Insurrection and repel Invasions." Article 1, Section 8, Clause 16 further empowers Congress:

"To provide for the 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, according to the discipline prescribed by Congress;" Any "patriot" out there still want to be called a member of the "MILITIA" as defined by the original Constitution?

Article 2, Section 2, Clause 1 empowers: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the MILITIA of the several States, when called into the actual Service of the United States;" The only way the States would accept the "MILITIA" as defined in the original Constitution was that the Federal "MILITIA" be "WELL REGULATED". The States realized that "THE SECURITY OF A FREE STATE" required that the "MILITIA" as originally created in the Constitution be "WELL REGULATED" by a "restrictive clause." How did the States decide to insure that the Constitutional "MILITIA" be "WELL REGULATED"? By demanding that "restrictive clause two" better know as the "Second Amendment" be added to the original Constitution providing:

"THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED." The States knew that "PEOPLE" with "ARMS" would "WELL REGULATE" the Federal "MILITIA"!

Now read for the first time with the full brightness of the Light of truth:

"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."

For those still overcome by propaganda:

The Second Amendment declares by implication that if the "MILITIA" is not "WELL REGULATED" by "PEOPLE" keeping and bearing arms, the "MILITIA" becomes a threat to the "SECURITY OF A FREE STATE."

The "MILITIA" has no "RIGHT TO KEEP AND BEAR ARMS" in the Second Amendment, rather it is only "THE RIGHT OF THE ""PEOPLE"" TO KEEP AND BEAR ARMS (that) SHALL NOT BE INFRINGED."

[Rod Martin]

Good Post. Thanks