The Second Amendment: The State Constitutional Ratification Debates
One of the chief concerns over the Constitution was in Congress’ ability, or desire to arm, discipline, regulate and call into Federal service the various state militias. There was a severe distrust of not just a standing army, but of a select militia. A select militia is a militia that receives the best training, the best weapons, and the best leaders, while the others are neglected. Think of the SS in Nazi Germany. To the Founders, a standing army was the bane of liberty. The British Army had been stationed in the colonies, not to protect the colonists from the Indians, but to ensure they paid their taxes and behaved themselves. By June of 1788, eight of the required nine states had ratified the new Constitution:
- Delaware December 7, 1787 (30-0) No Proposed Amendments
- Pennsylvania December 12, 1787 (46-23) No Proposed Amendments
- New Jersey December 17, 1787 (38-0) No Proposed Amendments
- Georgia January 2, 1788 (26 – 0) No Proposed Amendments
- Connecticut January 9, 1788 (128-40) No Proposed Amendments
- Massachusetts February 6, 1788 (187 – 168) Proposed Amendments
- Maryland April 28, 1788 (63 – 11) No Proposed Amendments
- South Carolina May 23, 1788 (149 – 73) Proposed Amendments
- New Hampshire June 21, 1788 (57 – 47) Proposed Amendments
- Virginia June 25, 1788 (89 – 79) Attached a Declaration of Rights, and Proposed Amendments
- New York July 26, 1788 (30 – 27) Attached a Declaration of Rights, and Proposed Amendments
- North Carolina November 21, 1789 (194 – 77) Attached a Declaration of Rights, and Proposed Amendments
- Rhode Island May 29, 1790 (34 -32) Attached a Declaration of Rights, and Proposed Amendments
Six of the first seven states to ratify took the Constitution as is. The other seven all proposed amendments, but the last four attached declarations of rights, a demand for a bill of rights. Had it been any other states than Virginia and New York, it may have been ignored. North Carolina refused to do anything because there was no declaration of rights attached. Rhode Island, on the other hand, held a referendum, and overwhelmingly rejected ratifying the Constitution.
The State of Massachusetts was the first State to ratify the Constitution, but attach a list of proposed amendments. Recorded in the journal of the Massachusetts debates, this amendment was proposed to be added to a committee report of suggested amendments:
“A motion was made and seconded, that the report of the Committee made on Monday last, be amended, so far as to add the following to the first article therein mentioned, viz. : ” And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience ; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms ; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them ; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances ; or to subject the people to unreasonable searches and seizures of their persons, papers or possessions.”
This motion was defeated.
It has since been attributed to Samuel Adams.
After Virginia and New York both ratified, but also attaching a declaration of rights to the ratification letter, North Carolina decided to take it up again. North Carolina ratified the Constitution over a year after New York did, and Rhode Island finally followed suit six months after that. Although the Constitution was one state from going into effect, the general consensus was that without Virginia and New York, the experiment would fail, and neither had even taken up debate and consideration of ratification. Virginia had been dragging its feet and had so far failed to ratify. It was New Hampshire who became the ninth state to ratify. Unfortunately, as far as I can tell, most of the debates in New Hampshire were either not recorded, or not preserved. I have only found this one fragment, talking about the abolition of slavery. As New Hampshire ratified they included a list of proposed amendments, which included:
XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.
Before New Hampshire, both Massachusetts and South Carolina had proposed amendments to the Constitution, but neither had mentioned the right to keep and bear arms. In Virginia, there were many concerns about the militia:
- Congress would become negligent in their duties, or simply stop funding them to take control of the states, and disarm the militias.
- Congress would not allow the States to call out their own militias in case of armed slave rebellion.
- Congress would emancipate the slaves by calling them into the militia, like the British did in the north during the Revolution. [Ed. Note: There were also free blacks who fought to overthrow the crown]
- Congress could simply neglect the militia and let it die in favor of a standing army.
Patrick Henry, leading anti-federalist in Virginia, opened the Virginia ratifying convention with a speech on June 5, 1788:
Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.
Henry was afraid that if the Federal government was given too much power, then it would make slaves of them all, or use its power to free his.
Henry was concerned about slaves revolting and the states being unable to respond with their militias. This is the basis of the argument that the Second Amendment was created and ratified to preserve slavery. However, not every Virginian agreed with Henry. James Madison, a slaveholder, thought Henry was being overly paranoid.
It expressly empowers Congress to govern [the militias] when in the service of the United States. It is, then, clear that the states govern them when they are not.
That didn’t stop Henry, though.
May we not discipline and arm them [the militia], as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms, &c.? Every one who is able may have a gun.
This argument is absurd, but taken out of context and used by many Second Amendment enthusiasts to show Henry’s support for the right to keep and bear arms, when in reality, he was complaining about Congress’ power to arm the milita. His argument was more for the reduction of the powers of Congress as opposed for the people to be armed.
There are to be a number of places fitted out for arsenals and dockyards in the different states. Unless you sell to Congress such places as are proper for these, within your state, you will not be consistent after adoption: it results, therefore, clearly, that you are to give into their hands all such places as are fit for strongholds. When you have these fortifications and garrisons within your state, your legislature will have no power over them, though they see the most dangerous insults offered to the people daily. They are also to have magazines in each state. These depositories for arms, though within the state, will be free from the control of its legislature. Are we at last brought to such an humiliating and debasing degradation, that we cannot be trusted with arms for our own defence? Where is the difference between having our arms in our own possession and under our own direction, and having them under the management of Congress? If our defence be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands? If our legislature be unworthy of legislating for every foot in this state, they are unworthy of saying another word.
Again, this is less an argument for the individual right to keep and bear arms than it is for the State be allowed to take care of its own militias and keep them out of Federal hands. By saying “that we cannot be trusted with arms for our own defence?” he was referring to the State, not the people.
George Mason suggested that the militias might be taken a long way from home:
It would be to use the militia to a very bad purpose, if any disturbance happened in New Hampshire, to call them from Georgia. This would harass the people so much that they would agree to abolish the use of the militia, and establish a standing army.
Alexander Hamilton, although from New York, obviously heard Mason’s concerns. In the Federalist #29 (writing as Publius) Hamilton countered Mason’s concerns, trying to convince fellow New Yorkers to ratify:
A sample of this is to be observed in the exaggerated and improbable suggestions which have taken place respecting the power of calling for the services of the militia. That of New Hampshire is to be marched to Georgia, of Georgia to New Hampshire, of New York to Kentucky, and of Kentucky to Lake Champlain. Nay, the debts due to the French and Dutch are to be paid in militiamen instead of louis d’ors and ducats. At one moment there is to be a large army to lay prostrate the liberties of the people; at another moment the militia of Virginia are to be dragged from their homes five or six hundred miles, to tame the republican contumacy of Massachusetts; and that of Massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic Virginians. Do the persons who rave at this rate imagine that their art or their eloquence can impose any conceits or absurdities upon the people of America for infallible truths?
Yet another native Virginian and future president, James Monroe, thought the fears preposterous:
Can any one seriously suppose, that Congress will ever think of drawing the militia of one State out, in order to destroy the liberties of another? Of Virginia, for instance, to destroy the liberties of Pennsylvania? Or should they be so wicked, that an American militia, officered by the States, would obey so odious a mandate? The supposition is monstrous.
But Mason had other fears:
Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia. [Here Mr. Mason quoted sundry passages to this effect.] This was a most iniquitous project. 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.
Virginia became the tenth state to ratify a few days later, but they were the first to attach a Declaration of Rights to their ratification letter, which included:
Seventeenth, 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 [sic] 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.
In the State of New York, anti-Federalists feared that the Federal government would call up the militia and use it to destroy the state governments, in the name of of the Common Defense and General Welfare:
[John Williams]: Why, they appoint the senators once in six years. So do the electors of Germany appoint their emperor. And what restraint have they against tyranny in their head? Do they rely on any thing but arms, the ultima ratio?
Still, New York became the eleventh state to ratify the Constitution, but they too attached a Declaration of Rights, including:
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 [sic] of a free State;
North Carolina debated and ratified the Constitution sixteen months later and was followed by Rhode Island another six months later. Both attached Declarations of Rights to their ratification statements. North Carolina:
17. 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 [sic] 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.
XVII. 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 shall not be subject to martial law, except in time of war, rebellion, or insurrection; that standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that, at all times, the military should be under strict subordination to the civil power; that, in time of peace, no soldier ought to be quartered in any house without the consent of the owner, and in time of war only by the civil magistrates, in such manner as the law directs.
Virginia and North Carolina were the only southern states to request a Declaration of Rights, including the enumeration of rights that state that the PEOPLE have a right to keep and bear arms. The reason for this is because without people, there are no state militias, and several states feared that Congress would neglect them and not give them arms. This was a protection against the threat of neglect. This is where the slavery argument begins to unravel. New Hampshire, New York AND Virginia had all asked that the right to keep and bear arms be included in a declaration of rights. While slavery was still legal in New York, all states north of the Mason-Dixon line (the northern Maryland border) except New York and New Jersey had taken steps to abolish and eliminate slavery in their states. South Carolina, Delaware, Maryland and Georgia all ratified the Constitution as it was without suggesting amendments. That’s four out of the six southern, slaveholding states. When North Carolina ratified the Constitution and attached their declaration of rights (November 21, 1789), the Bill of Rights had already been introduced to Congress (June 8, 1789). In fact, by September 25, 1789, the ratification of the Bill of Rights had already begun. It is safe to say, based on the historical record, that the Second Amendment was not a compromise between north and south to get the south to ratify the Constitution. It is also safe to say, again based on the historical record, that the states feared of a government that would not properly take care of the militias, and that they would be ill prepared to deal with insurrections within their own state, be it a slave revolt or a citizen revolt (there were a lot of rebellions in the early days). I think we can establish that slavery was merely tangential to the establishment of the Second Amendment, not the primary driver. If that’s the case, what was the primary driver of the establishment of the Second Amendment? The militia, of course.
Next, part 2: The Congressional Debates