Slavery and the Second Amendment: Slave Patrol Militias
by Michael R. Burch, an editor and publisher of Holocaust poetry, Trail of
Tears poetry and Nakba poetry
The Second Amendment states: "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."
Why was the term “free State” used, rather than “free Nation” or “free Country”? Actually, the
term “free Country” appeared in the original version of the Second Amendment.
However, the wording was changed to appease slave owners. Why? Because prominent
southern slaveholders wanted the Bill of Rights to sanction slave control
militias. As H. M. Henry noted, "Slavery was not only an economic
and industrial system ... it was a gigantic police system." This tyrannical
police state was largely administered through brutal slave control militias.
Unfortunately, if the free states wanted to have a Union, they would have to
make a “deal with the Devil” in the form of a terrible compromise with the slave
states over these diabolical organizations. The first terrible compromise was to
allow the ghastly institution of slavery to be "legal" in the United States. The
second terrible compromise can be found in the Second Amendment.
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 an interesting thesis: James Madison wrote the Second Amendment to assure
the southern states that Congress would not undermine the slave system by
disarming the militias, which were then the principal instruments of slave
control throughout the South.
At the time that James Madison changed the wording of the Second Amendment to
appease slaveholders, eight states had ratified the proposed Constitution, but a
ninth was needed to make it official. The fate of the United States hung in the
balance, because four states were opposed to ratification. The last best hope of
a “more perfect Union” was Virginia. Thomas Jefferson and James Madison were
Virginians, and slaveholders. Thus, the primary authors of the
foundational documents of then-fledgling Union knew full well what it would take
to seal the deal. Virginians would have to be assured that they could keep their
slaves, which meant assuring them that they could keep their slave control
militias, because the former could not survive without the latter.
At a recent American Constitution Society briefing, NAACP Legal Defense Fund
president John Payton debunked the gun lobby's favorite myth that the Second
Amendment was the "last bulwark" against tyranny, explaining that the
"well-regulated militias" cited in the Constitution almost certainly referred to
the tyranny-imposing slave control militias of southern states like Virginia.
Professor Bogus concurs with Payton. In his close analysis of James Madison’s
writings, Bogus described the South’s obsession with militias during the
ratification process: “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.” He
also described how leading anti-Federalists Patrick Henry and George Mason used
the fear of slave rebellions to drum up opposition to the Constitution, and how
Madison used the Second Amendment to placate Virginians and win their support
But today even Supreme Court justices seem to have fallen under the spell of
the NRA and its gun-worshiping zealots, as this excerpt from a Mother Jones
article illustrates: “Dozens of interest groups, from the Pink Pistols to Jews
for the Preservation of Firearms Ownership, have filed amicus briefs, offering
their take on the Second Amendment. But during oral arguments, Justice Anthony
Kennedy and his conservative brethren seemed to fully embrace the gun lobby's
favorite romantic myth that the founders, inspired by the image of the musket in
the hands of a minuteman, wrote the Second Amendment to give Americans the right
to take up arms to fight [federal] government tyranny. But what the founders
really had in mind, according to some constitutional-law scholars, was the
musket in the hands of a slave owner. That is, these scholars believe the
founders enshrined the right to bear arms in the Constitution in part to enforce
tyranny, not fight it.”
The southern slave control militias authorized by the revised Second
Amendment were not small affairs. Far from it. They were huge, compulsory
networks. George Mason, a Virginia delegate to the U.S. Constitutional
Congress who has been called the “Father of the Bill of Rights,” confirmed that
the southern militias were comprised of all white male citizens with only a few
exceptions: "Who are the militia? They consist now of the whole people, except a
few public officers." (Like many bigots and chauvinists, Mason didn't
consider women, children or people with darker skin to be “people.”)
These extensive militias had become part and parcel of
southern society. Two decades before the
Revolutionary War, the state of Georgia passed laws that required all plantation
owners or their white male employees to enlist. The Georgia militias were
required to make monthly inspections of all the state’s slave quarters.
According to Professor Bogus, "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 Houses for offensive Weapons and
Ammunition' and to apprehend and give twenty lashes to any slave found outside
By the time the founding fathers got together to hammer out a Constitution
and Bill of Rights, there had been hundreds of slave uprisings across the South.
One researcher, Herbert Aptheker, identified around 250 rebellions or
conspiracies involving ten or more slaves. So it should come as no surprise to us that
Jefferson wrote: "... 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."
Blacks outnumbered whites in many areas. Thus, armed state militias were
required to “keep the peace.” So Virginia’s delegates demanded that the Bill of
Rights include one granting white citizens the right to bear arms and form state
militias. Even enlightened men like Jefferson were afraid of real equality.
In her book Slave Patrols: Law and Violence in Virginia and the Carolinas,
Sally E. Haden explains that, with only a few exceptions such as judges,
legislators and students, nearly every white man in Virginia and the Carolinas
became a slave patroller between the ages 18 and 45, even physicians and
Without slave patrols, the southern police states would have collapsed. And
because southerners knew how strongly many northerners opposed slavery, they
were worried that if the federal government controlled the only militia, their
slaves might be emancipated through military service.
Such possibilities troubled southern slaveholders like Thomas Jefferson,
James Madison, George Mason (the owner of more than 300 slaves) and Patrick
Henry. (Jefferson and Henry opposed slavery on principle, and yet opposed
Some slaveholders were concerned that Article 1, Section 8 of the
then-proposed Constitution, which gave the federal government the power to raise
and supervise a militia, could result in a federal militia that absorbed the
state militias and ended up freeing the slaves they had been keeping in chains. And there had been just such a precedent. Twelve years earlier, Lord Dunsmore
had offered freedom to slaves who escaped and joined his forces. "Liberty to
Slaves" was stitched onto their jacket pocket flaps. Also, freed slaves had
served in General Washington's army. So it was no idle fear that slaves
might be emancipated through military service.
Thus, at the ratifying convention in Virginia in 1788, Henry said:
"Let me here call your attention to that part [of the proposed Constitution]
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 ... 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
"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 [under this proposed Constitution]
"If the country be invaded, a state may go to war, but cannot suppress
[slave] insurrections [under this new Constitution]. 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 [under this new Constitution], can call forth the militia."
"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 ... May Congress not say, that every black man must fight? Did
we not see a little of this last war? We were not so hard pushed as to make
emancipation general; but acts of Assembly passed that every slave who would go
to the army should be free."
Henry was obviously convinced that the power granted the federal government
in the new Constitution could be used to strip the slave states of their slave
control militias. He anticipated exactly what Abraham Lincoln would end up
"They will search that paper [the Constitution], 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. This [slavery] is
a local matter, and I can see no propriety in subjecting it to Congress."
Madison, the "Father of the Constitution" and a slaveholder, thought Henry
was going overboard, replying:
"I was struck with surprise, when I heard him express himself alarmed with
respect to the emancipation of slaves ... There is no power to warrant it, in
that paper [the Constitution]. If there be, I know it not."
Henry, however, argued that southerner's "property" [slaves] would be lost
under the new Constitution, and the resulting slave uprisings would ruinous. His
response to Madison was:
"In this situation, I see a great deal of the property of the people of
Virginia in jeopardy, and their peace and tranquility gone."
So Madison changed his first draft to one that unambiguously declared that
the southern states could maintain their slave control militias.
His first draft of the Second Amendment had said: "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
But Henry, Mason and other slaveholders wanted the southern states to be able
to keep their slave control militias independent of the federal government. So
Madison changed the word "country" to "state," and redrafted the Second
Amendment into its present form:
"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."
So if a child you love is killed by a madman bearing arms suited only to a
military battlefield, you now know the reason why. Some American lawmakers have
always prized their money and their security over the rights of people who are
weaker and less fortunate. Whether the victim is a slave or a child seems to
mean nothing to them.
Prominent Founding Fathers who owned slaves at some point during
Charles Carroll, Maryland, called slavery a "great evil" but did not free
his own slaves.
Samuel Chase, Maryland, once owned slaves but became an abolitionist.
Benjamin Franklin, Pennsylvania, once owned slaves but freed them and became an
Button Gwinnett, Georgia, owned slaves and died in a duel.
John Hancock, Massachusetts, once owned slaves but opposed slavery politically.
Patrick Henry, Virginia, wrote against slavery but opposed freeing slaves and
also wrote of the "inconvenience" of living without them.
John Jay, New York, owned slaves but freed them and worked for manumission and education of
Thomas Jefferson, Virginia, opposed slavery on principle but owned slaves his
entire life and only freed his own children by Sally Hemmings via his will.
Richard Henry Lee, Virginia, owned slaves but sought to end the slave trade and
considered slavery to be evil.
James Madison, Virginia, strongly opposed slavery but owned hundreds of slaves
and considered them to be both human and "property."
Charles Pinckney, South Carolina, saw slavery as "good" and sought to protect
not only slavery, but the slave trade.
Benjamin Rush, Pennsylvania, opposed slavery and the slave trade, but owned a
slave when he joined the Pennsylvania Abolition Society in 1784.
Edward Rutledge, South Carolina, owned around 50 slaves and seems to have been
George Washington, Virginia, owned slaves all his life, but made provisions in
his will for them to be freed and wanted slavery to be gradually abolished.