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Slavery and the Second Amendment: From Slave Patrol Militias to School Shootings

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 the slave states. Why? Was it because influential 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." Each southern police state was "kept safe"—at least for its white citizens—by armed militias. Unfortunately, if the free states wanted a Union, they would have to make a "deal with the Devil" in the form of terrible compromises with the slave states. The first terrible compromise was to allow the ghastly institution of slavery to be "legal" in the United States. A second terrible compromise can be found, ironically, in the Second Amendment. And that compromise is now allowing children to be gunned down by serial killers in schools like Virginia Tech University, Columbine High School, Parkland's Marjory Stoneman Douglas High School and even grade schools like Sandy Hook Elementary, thanks to the NRA and its gung-ho Second Amendment supporters.

The Virginia Diaries: The Second Amendment Cast of Characters

James Madison, the "Father of the Constitution" and a slaveholder, would rewrite the Second Amendment to protect slave militias.
Thomas Jefferson, the "Father of The Declaration of Independence," abhorred slavery but owned hundreds of slaves including his own children by Sally Hemmings.
Patrick Henry, who said "Give me liberty or give me death!" fought long and hard for liberty-denying slave militias.
George Mason, the "Father of the Bill of Rights" and a slaveowner, verbally opposed slavery while in reality protecting it.
George Washington, the "Father of his Country" and a slaveowner, headed the convention but did not take part in the debates.
Benjamin Franklin was the most prominent non-Virginian, and an abolitionist who had freed his slaves.

by Michael R. Burch, an editor and publisher of Holocaust, Trail of Tears and Nakba poetry

In his U.C. Davis Law Review article "The Hidden History of the Second Amendment," Professor Carl T. Bogus of the Roger Williams University School of Law offers an interesting thesis: James Madison re-wrote the Second Amendment to assure the southern states that Congress would not undermine the slave system by disarming militias which at that time were the principal instruments of slave control throughout the South.

Madison apparently revised the wording of the Second Amendment to appease slaveholders at a time when eight states had ratified the proposed Constitution, but a ninth was needed to make it official. The unity of the United States hung in the balance, with four states opposed to ratification. The last best hope of a "more perfect Union" was Virginia. Thomas Jefferson and James Madison were Virginians, and slaveholders. These primary authors of the foundational documents of the fledgling Union knew 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. Other prominent Virginians, including Patrick Henry and George Mason, would also play critical roles, as we shall see.

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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 describes 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 for ratification.

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 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." (Mason apparently 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, 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 plantation grounds."

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. The fear of uprisings by African Americans was very real. Many white intellectuals who opposed slavery—including Jefferson, Mason and later Abraham Lincoln—considered it impossible for whites and blacks to live together in peace. Jefferson compared slavery to having “a wolf by the ear, and we can neither hold him, nor safely let him go.” He predicted a race war if the slaves were freed, and a civil war if they weren't. Such was the fear that both Jefferson and Lincoln had plans to deport freed slaves.

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Blacks outnumbered whites in many areas, which meant armed militias were required to "keep the peace." Thus, Virginia's delegates demanded that the Bill of Rights include one granting white citizens the right to bear arms and form state militias.

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 ministers.

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 freeing slaves. They were definitely "conflicted."

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 a precedent. Twelve years earlier, Lord Dunsmore had offered freedom to slaves who escaped and joined his forces with "Liberty to Slaves" stitched onto their jacket pocket flaps. Freed slaves had also 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 rendered nugatory."

Mason concurred:

"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] ..."

Henry again:

"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."

Henry again:

"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 doing:

"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 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 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 person."

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 security over the rights of people who are weaker and less fortunate. Whether the victim is a slave or a child seems to mean little or nothing to them.

Prominent Founding Fathers who owned slaves at some point during their lives:

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 abolitionist.
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 other slaves.
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 clearly pro-slavery.
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.

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