31-01-2013, 05:19 PM
"A WELL REGULATED MILITIA": THE SECOND AMENDMENT IN HISTORICAL PERSPECTIVE
27th January 2013
Chicago-Kent Law Review
Symposium on the Second Amendment, vol. 76, 2000: 195
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
"A WELL REGULATED MILITIA": THE SECOND
AMENDMENT IN HISTORICAL PERSPECTIVE
Paul Finkelman*
About the author: A specialist in American legal history, constitutional law, and race and the law, Professor Paul Finkelman is the author of more than 150 scholarly articles and more than 30 books. His op-eds and shorter pieces have appeared in the New York Times, the Washington Post, USA Today, and on the Huffington Post. He was recently named the ninth most cited legal historian according to "Brian Leieter's Law School Rankings."
A well regulated Militia, composed of gentlemen freeholders, and other freemen, is the natural strength and only stable security of a free Government. George Mason[1]
The history of the Second Amendment is rooted in English conflicts between the king and his people. It involves the relationship between the standing army and the militias during and after the English Civil War. It also involves the struggles of the colonists against the Crown before and during the Revolution.
This English background is useful, and certainly interesting, but the history of the drafting and adoption of the Second Amendment emerges out of far more immediate events. The failure of the national government under the Articles of Confederation prompted the call for a convention to revise the Articles.
While American leaders were contemplating calling a convention to revise the Articles, violent resistance to traditional law enforcement¾most notably Shays's Rebellion in Massachusetts¾underscored the sense of crisis that many Americans felt. Farmers led by Captain Daniel Shays marched on local courthouses in western Massachusetts, shutting down the courts and intimidating judges and others. Eventually militia companies from eastern Massachusetts dispersed Shays and his followers.
The delegates to the Philadelphia Convention met with this event fresh in their memories and with the knowledge that the government under the Articles of Confederation would probably be [Page 196] helpless in a similar situation. Thus, when he introduced the Virginia Plan at the Philadelphia Convention, Governor Edmund Randolph "commented on the difficulty of the crisis" facing the nation and spoke of "the necessity of preventing the fulfillment of the prophecies of the American downfall."[2] Randolph "then proceeded to enumerate the defects" in the present government, noting that "the confederation produced no security against foreign invasion; congress not being permitted to prevent a war nor to support it by their own authority" and that "neither militia nor draughts being fit for defence on such occasions, enlistments only could be successful, and these could not be executed without money."[3] He pointed out that "the federal government could not check the quarrels between states, nor a rebellion."[4] He expressed his admiration for those who had written the Articles of Confederation, but noted that they had produced that document when the inefficiency of requisitions was unknown no commercial discord had arisen among any states no rebellion had appeared as in Massts.¾foreign debts had not become urgent¾the havoc of paper money had not been foreseen¾treaties had not been violated¾and perhaps nothing better could be obtained from the jealousy of the states with regard to their sovereignty.[5]
Most of the Convention delegates agreed with Randolph's analysis and quickly moved from revising the Articles of Confederation to writing a wholly new Constitution. In the end, they produced a document that strengthened the national government and provided a framework for a viable national defense. Opponents of the new form of government¾Antifederalists who feared a strong national government¾proposed numerous amendments in the state conventions called to ratify the Constitution. The Antifederalists also expressed their fears of the new Constitution in an enormous amount of public commentary.[6]
Though the public commentary fell into two general classes, the [p. 197] bulk of the proposed amendments were designed to remake the Constitution by severely limiting the power of the national government. If the Antifederalists had succeeded, the United States would have reverted to a decentralized collection of sovereign states with a weak national congress, an almost invisible federal judiciary, and a powerless military with virtually no standing army.
Not surprisingly, the Federalists who dominated the First Congress rejected all of these structural changes and did little to alter the power of the national government under the new Constitution. The Federalists did, however, offer a series of amendments that, for the most part, recognized existing limitations on the national government under the new Constitution.
The Bill of Rights confirmed that the national government would not trample on the rights of conscience, deny people due process of law, or impose cruel and unusual punishments on convicted criminals. While some of its provisions actually created new rights¾such as the right to counsel in the Sixth Amendment¾most of the amendments simply confirmed what the national government could not do under the Constitution. The Second and Tenth Amendments reconfirmed existing relations between the states and the national government but did not create any new rights or structural relationships. In particular, the Second Amendment reconfirmed that even though the national Congress would have the primary responsibility for arming and organizing the state militias, the states could maintain their own militias, if Congress failed to do its job.
I. THE ANTIFEDERALISTS' GOALS
During the debates over ratification, Governor Patrick Henry of Virginia and many other Antifederalists used the absence of a bill of rights in the Constitution to galvanize opposition to ratification. They persisted, from beginning to end, in claiming that the Constitution would create a tyranny and that the failure to insert a bill of rights was an indication of the desire of the framers to take away the liberties of the American people.
However, for the most dedicated opponents of the Constitution, the demand for a bill of rights was fundamentally a ruse. They truly hoped to defeat the Constitution and thus either leave the Articles of Confederation in place or force a second convention that would have created a substantially weaker national government than the Philadelphia Convention had proposed. [Page 198]
The Antifederalist plan for stopping ratification of course ended in July 1788, when they were outmaneuvered in their two most important strongholds¾Virginia and New York. New Hampshire's ratification had supplied the necessary ninth state to have the Constitution go into effect. Ratification in Virginia and New York not only put the Federalists well over the top but, more importantly, brought the most populous state (Virginia) and the state with the nation's most important seaport (New York) into the government.
As they met with defeat in one state after another, the Antifederalists fell back to their secondary position of demanding amendments to alter the nature of the government.[7] Thus, in a number of the states, the defeated Antifederalists proposed amendments that they hoped would be added after ratification. Though this was not an ideal strategy for the Antifederalists, it was their last hope. Some of these amendments contained suggestions that would have created a bill of rights, but most of the Antifederalist proposals were crippling amendments that would have resulted in a weaker Constitution.
The Antifederalists wanted the state ratifying conventions to endorse their proposed amendments. But this support was not always possible since the Antifederalists negotiated from a position of weakness compared to the Federalist majorities in the state conventions.[8] In Pennsylvania, for example, the Federalist majority completely ignored the Antifederalists, who then issued their Reasons of Dissent as a pamphlet.[9] In Maryland, the Antifederalists met with the same fate and resorted to a newspaper publication of their proposed amendments.[10] As Herbert Storing notes, the Maryland [Page 199] Antifederalists tried to get the convention to endorse their amendments in return for a promise that the Antifederalists would support the Constitution. But, having successfully ratified the Constitution, the Maryland Federalists "brushed aside" the deal offered by the Antifederalists who had just been soundly defeated.[11]
On the other hand, in Massachusetts, New Hampshire, and Virginia, the Federalist majorities included the proposed amendments as part of the official proceedings of the ratifying conventions to placate large Antifederalist minorities. This compromise also occurred in New York. Though the Antifederalists were the majority in that state, a substantial minority of them voted to ratify the Constitution because ten states had already done so. In addition, growing support for the Constitution in and around New York City convinced many Antifederalist delegates at the New York convention that their constituents now wanted ratification.[12] John Jay, a Federalist leader, helped bring this about by a preemptive strike: he proposed that the convention delegates attach a list of recommended amendments to its ratification. This arrangement "embarrassed the Antifederalists"[13] by compelling them to admit the weakness of their position and, in a sense, forcing them to accept the best deal they could negotiate with the Federalists. Jay's move led to a compromise with the more moderate Antifederalists, who agreed to vote for ratification in exchange for Federalist endorsement of recommended amendments. To sweeten the deal, Jay also offered to support a circular letter calling for a second convention; this was a "sham compromise that was in fact a total surrender" by the Antifederalists.[14] In the end, enough Antifederalists voted for ratification to get the document through the New York convention. Appended to the ratification was an absurdly long list of proposed changes that included some thirty-two amendments plus twenty-five statements of principles.[15]
By the end of the ratification process, the conventions in [Page 200] Massachusetts,[16] South Carolina,[17] New Hampshire,[18] Virginia,[19] and New York[20] had appended to their ratification documents various proposed amendments to the Constitution. In addition, the Antifederalists in Pennsylvania[21] and Maryland[22] had published their own recommended amendments. The officially endorsed amend-ments numbered over one hundred, but many of the separate amendments actually covered many topics. Thus, the total number of proposed amendments was at least two hundred. Many concerned issues we normally think of as Bill of Rights protections. However, the majority of the Antifederalist demands were structural in nature, designed to remake the Constitution by weakening the national government. By eliminating duplications, "about 100 separate proposals can be distinguished," and a "clear majority" of these called for structural changes.[23]
When Madison proposed what became the Bill of Rights in Congress, he ignored virtually all of the structural proposals, which, not surprisingly, infuriated the hard-core Antifederalists. Indeed, the refusal of Madison and his committee to even consider the long list of structural changes proposed by the Virginia Ratifying Convention led Virginia's two senators, William Grayson and Richard Henry Lee, who were the only Antifederalists in the U.S. Senate, to publicly denounce the proposed amendments.[24] They did not approve of Madison's proposed amendments because they believed the amendments would undermine their cause, prevent the calling of a second convention, and yet leave the structure of the Constitution [Page 201] intact. As Madison explained to Jefferson, even before the Constitution was ratified, the Antifederalists wanted to "strike at the essence of the System," and either return to the government of the old Confederation, "or to a partition of the Union into several Confederacies."[25]
A good example of what the Antifederalists really wanted can be found in the Virginia convention's list of forty proposed amendments. The first twenty proposals formed "a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable Rights of the People."[26] Only a few proposals were structural in nature, such as a requirement for rotation in office and a prohibition on hereditary offices.[27] Most proposals dealt with the civil liberties that are today protected by the Bill of Rights subsequently adopted in 1791.[28]
After this list of twenty amendments, which would form a "Bill or Declaration of Rights," the Virginia delegates wrote twenty more proposed changes called "Amendments to the Body of the Constitution."[29] With the exception of one proposal dealing with juries, this list contained proposals that would have remade the powers of the government and revamped the political process. Many of the proposals would have hamstrung the operations of the national government, weakened all three branches of the government, and rendered the system more cumbersome.
This second list, which was by far the more important list for Antifederalists like Patrick Henry, proposed a wholesale remaking of the system of government. The Virginia Antifederalists wanted super-majorities in Congress for many important government functions, including: (1) a three-fourths majority of both houses for all noncommercial treaties, (2) a two-thirds majority of the Senate for the adoption of all commercial treaties, (3) a two-thirds majority in each house of Congress for all regulations of commerce (which the Antifederalists called navigation laws), and (4) a two-thirds majority in Congress to maintain a peacetime army.[30] They also clamored for mandatory term limits (rotation in office, as they called it) for [Page 202] presidents and severely limited federal jurisdiction over what became the District of Columbia.[31] Aside from the Supreme Court, these Antifederalists would have allowed only "courts of Admiralty."[32] They would have permitted impeachment trials of senators by "some Tribunal other than the Senate" and limited the power of the national government to collect taxes in the states.[33]
Antifederalists in other states wanted similar changes that would have cut the heart out of the new Constitution. Virtually all the Antifederalists would have rewritten the judiciary article to the point where the federal court system would have been unrecognizable and our resulting constitutional history would have been altered in unimaginable ways.[34] Delegates to the New York Ratifying Convention, with its large Antifederalist majority, proposed structural changes similar to those the Virginia Antifederalists demanded. A Constitution amended to satisfy these New Yorkers would have limited federal diversity jurisdiction only to cases involving land grants, prohibited any federal treaty from operating against a state constitution (thus undermining the Supremacy Clause), and proscribed Congress from granting monopolies.[35] In addition, the New Yorkers would have limited power with the following requirements: (1) a two-thirds majority in both houses of Congress to borrow money or to declare war, (2) strict temporal limitations on the suspension of habeas corpus, (3) mandatory rotation in office for U.S. senators, and (4) prohibitions on federal capitation taxes and on the creation of intermediate appellate federal courts.[36] The New Yorkers also suggested limitations on the president's pardon power and on the federal power to adopt bankruptcy laws.[37] Antifederalists in Massachusetts and New Hampshire similarly sought to limit federal court jurisdiction, prohibit the federal government from granting monopolies, and restrict the federal government's power to tax.[38]
The fact that the majority of Antifederalist proposals were structural, rather than libertarian, underscores the fact that the most [Page 203] prominent Antifederalists were only marginally interested in a bill of rights. Indeed, among the hard-core Antifederalists it is clear that the argument about a bill of rights was, for the most part, a stalking horse for their larger goal¾to undermine the strength of the new central government. Antifederalist leaders like Henry and Lee really wanted to defeat the Constitution and either go back to the old system or force a second convention where they could rewrite the document along the states' rights lines that interested them. But, having failed to defeat the Constitution, they strove for crippling amendments that went to the very structure of that document. James Madison believed that the Antifederalist leaders were really involved in a "conspiracy agst. direct taxes" which was "the real object of all their zeal in opposing the system."[39] Madison believed their ultimate goal was to destroy the power of the national government to levy any taxes and thus "re-establish the supremacy of the State Legislatures."[40] Thus, they vociferously demanded a bill of rights before the Constitution was ratified in hopes that the purported lack of libertarian protections would persuade more moderate Americans to help them defeat ratification. But, once the Constitution was ratified, they were no longer interested in a bill of rights and instead wanted a wholesale restructuring of the Constitution.
This quick overview of the major Antifederalist demands illustrates how out-of-step they were with the Federalist majorities in the ratifying conventions and how decisively they were defeated in 1787-88, when the Constitution was ratified. Similarly, they were even more out-of-step with the massive Federalist Congressional majority in 1789, which proposed the Bill of Rights. In 1789-91, the hard-core Antifederalists suffered their final defeat, as Federalists and moderate Antifederalists accepted the Bill of Rights, and with it, the victory of the Constitution itself.
The Second Amendment arose out of the conflict between Federalists and Antifederalists over those portions of the Consti-tution that dealt with the militia and the national army. But it was ultimately tied to the larger Federalist-Antifederalist conflict over the nature of the new government itself. [Page 204]
II. THE CONSTITUTION, THE MILITIA, AND THE NATIONAL ARMY
The framers in Philadelphia gave Congress and the president shared responsibility for the ultimate control of the militia. They also gave state governments important responsibilities and powers in organizing and training militias, while at the same time taking ultimate authority from the states.
Article I of the Constitution gives Congress power to "declare War,"[41] "to raise and support Armies,"[42] to "maintain a Navy,"[43] to make "Rules for the Government and Regulation of the land and naval Forces,"[44] to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,"[45] and "to provide for organizing, arming, and disciplining, the Militia."[46] Furthermore, Article I declares that the states may not "keep Troops, or Ships of War in time of Peace."[47] Article II makes the president of the United States the "Commander in Chief of the Army and Navy" and "of the Militia of the several States, when called into the actual Service of the United States."[48] These provisions also contain two important limitations. Congress can only appropriate money for the military for two years,[49] and the states retain the power to appoint all militia officers and to train the militia, provided this training complies with "the discipline prescribed by Congress."[50]
Taken together, these provisions contemplated two levels of military protection for the new nation: (1) a national army created and governed solely by Congress and ultimately under the authority of the president in his capacity as commander in chief, and (2) a system of state militias, essentially organized and under control of the states, but subject to regulation by Congress and to "federalization" at the command of the president. Part of that regulation included the idea that the national government had the power¾and the obligation¾to provide arms for the local militias.[51] As Rufus King [Page 205] explained at the Convention, "arming meant not only to provide for uniformity of arms, but included authority to regulate the modes of furnishing, either by the militia themselves, the State Governments, or the National Treasury."[52] Thus, the defense of the United States would rely on both the state militias and the standing army.
For a variety of reasons, most Antifederalists feared these arrangements. They were most concerned about the federal standing army. According to the traditional Whig and Republican ideology of the period, a standing army threatened the liberties of a free people.[53] This argument was rooted in English history, where the army was traditionally a remote mercenary force, disconnected from the people, and under the direct control of a hereditary monarch. The experience of the Revolution also led to hostility for the standing army. For example, in 1770, after Lord Hillsborough sent British troops to American soil, Benjamin Franklin reportedly felt that the British army had been sent to silence the protests of the colonial settlers, rather than cure the problems of which they complained.[54] The Declaration of Independence, which Franklin later helped write, polemically, but accurately, included the standing army in its laundry list of complaints against the king:
He has kept among us, in times of peace, Standing Armies without the Consent of our Legislature.
He has affected to render the Military independent of and superior to the Civil Power.
He has . . . given . . . his Assent to . . . acts of pretended Legislation:
For quartering large bodies of armed troops among us.[55]
Madison and other Federalists believed that the Constitution directly responded to these issues in several ways. In the Constitution, the military was triply under civilian control: Congress regulated all branches of the military, the president was the ultimate commander in chief of all the military, and the governors controlled the state militias when not under federal authority. Meanwhile, appropriations for the military were limited to two years, thus preventing a true standing army from taking control. The only [Page 206] "military" provision of the Declaration not directly addressed by the Constitution was the fear of the "quartering of large Bodies of Troops among us." Wisely, the framers left that problem to the political process. Given the close proximity to the British in Canada, the Spanish in the west, and Native Americans everywhere, it would have been foolish indeed to prohibit the placement of troops close to population centers.[56] Ironically, of course, modern civic leaders across the nation avidly compete for the location of forts and bases in their communities. The complaint of many communities like Fort Dix, New Jersey, is that Congress, the president, or some faceless base-closing commission has refused to continue to quarter "large Bodies of Troops among us."
The Antifederalists proposed amendments that would have altered these provisions of the Constitution. Had the Antifederalists succeeded, the United States would have become a fundamentally different, and weaker, nation. However, Madison and his colleagues in Congress soundly rejected the Antifederalist proposals.
III. ANTIFEDERALIST HOPES: THE CASE OF THE PENNSYLAVANIA MINORITY
At the end of the Pennsylvania Ratifying Convention, the Antifederalists were soundly defeated. After that state convention, they published their Reasons of Dissent.[57] Part of this document contained a list of fourteen proposed amendments to the Constitution. Some of these proposals¾those dealing with the protection of individual libertarian rights and legal due process¾were later incorporated, almost word-for-word, into the Bill of Rights. The essence, and in some places the exact language, of the Free Exercise [Page 207] Clause[58] and the Free Press and Speech Clauses[59] of the First Amendment are found in these fourteen proposals, as are the essence and language of the Fourth,[60] Fifth,[61] Sixth,[62] Seventh,[63] and Eighth[64] Amendments. Elements of the Tenth Amendment are also found in the proposals.[65] Congress ignored a number of other proposed amendments on taxation, the size of the House of Representatives, the power of the federal courts, and treaty-making power.
The Pennsylvania Antifederalists also proposed amendments concerning the army, the militia, the right to bear arms, and the right to hunt. These amendments addressed at least six separate issues: (1) the right of self-protection through the ownership of weapons, (2) the right to serve in the militia, (3) the right to hunt and fish, (4) the prevention of a standing army, (5) the power of Congress over the states, and (6) the power of the states to control their own armies or militias.[66] The proposals, which are found in three of the fourteen [Page 208] amendments offered by the Pennsylvania minority, help us understand the intentions of the framers of the Second Amendment. This understanding, however, is a negative one. By seeing what the framers of the Second Amendment did not do, we can better understand what they did do.
Had the proposals of the Pennsylvania Antifederalists on this issue been written into the Bill of Rights, the Second Amendment might be the least controversial of the first ten Amendments. It is of utmost significance, however, that unlike other aspects of the Pennsylvania proposals, which were incorporated into the Bill of Rights almost word-for-word, Madison and his colleagues in the First Congress emphatically rejected the goals and the language of the Pennsylvania Antifederalists on these issues.
Thus, it is useful to consider what Congress might have written, but did not. Number Seven of the amendments listed in the Reasons of Dissent provided
[t]hat the people have a right to bear arms for the defense 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; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.[67]
Number Eight, an entirely separate provision, asserted that:
The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times, on the lands they hold, and on all other lands in the United States not enclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein by any laws to be passed by the legislature of the United States.[68]
Number Eleven from the dissenters' list was the only one that contained two separate paragraphs. At first glance the paragraphs seem entirely separate and oddly juxtaposed. Careful examination suggests a connection. The first paragraph declared
[t]hat the power of organizing, arming, and disciplining the militia (the manner of disciplining the militia to be prescribed by Congress) remain with the individual states, and that Congress shall not have authority to call or march any of the militia out of their own state, without the consent of such state, and for such length of [Page 209] time only as such state shall agree.[69]
The second paragraph of Number Eleven asserted "that the sovereignty, freedom, and independency of the several states shall be retained, and every power, jurisdiction, and right which is not by this constitution expressly delegated to the United States in Congress assembled."[70] This second paragraph, when tied to the previous one, underscores the connection many Antifederalists saw between state sovereignty and the control of the state militia.
If Congress in 1789 had accepted these proposals of the Pennsylvania minority, then one might persuasively argue that the Constitution, as amended, guaranteed a personal and individual right of Americans to own weapons "for the defense of themselves and their own state, or the United States, or for the purpose of killing game."[71] Both the personal self-defense interests and the "American sportsman" interests of organizations of gun owners would then have been explicitly protected by the Bill of Rights. We might argue today about what sort of weapons are protected. It is not clear that such provisions would today protect the private ownership of Saturday night specials, assault rifles (however Congress might define them), submachine guns, sawed-off shotguns, bazookas, or flamethrowers. But, whatever fell in or out of the protected arena, the constitutional principle of private ownership of weapons would have been clear.
Had Congress added these provisions to the Bill of Rights, we would also have a very different country than we have today, assuming, of course, that we still would have a country. It is entirely possible that the provisions limiting both a standing army and the power of the national government to call up the militia would have long ago led to a destruction of the nation from either outside forces or internal disruptions.
If we contemplate the implications of the Pennsylvania proposals¾especially in light of subsequent developments in American history¾we immediately see why Congress completely rejected the Pennsylvanians' demands for state control of the militia and for personal ownership of guns.
Such provisions might have prevented the Washington administration from effectively suppressing the Whiskey Rebellion or the Madison administration from calling out troops to face down the [Page 210] British in 1812. Without the ability to call up the militia, President Andrew Jackson might not have successfully stood up to the nullificationists in South Carolina.[72] In responding to the Nullification Proclamation in 1832, President Jackson reminded the citizens of South Carolina that "disunion by armed force is treason,"[73] and made it clear that this behavior would be met by military force equal to the task of crushing the rebellion. This stance would not have been possible if the states had retained full control of the militias or if the national government had been precluded from disarming rebellious citizens. Similarly, if the Pennsylvania Antifederalists had succeeded, it is unlikely that the Pierce administration could have used the Massachusetts militia to help return the fugitive slave Anthony Burns from Boston in 1854.[74]
Then, of course, there is the war of 1861-65¾variously called the Civil War, the War Between the States, the War for Southern Independence¾but rarely any more called by its only official name, the War of the Rebellion.[75] Had the restrictive provisions of the Pennsylvania minority been enacted, President Lincoln might have been unable to call out the state militias to suppress the rebellion.
Madison and his colleagues could not have predicted the Whiskey Rebellion, the Nullification crisis, or the Civil War. But they were shrewd enough to know that the lack of national military power¾and with it the power to disarm those who are in rebellion or might be in rebellion¾would undermine any national state. Having just created a stronger national state in the wake of Shays's Rebellion and similar rebellions in other states,[76] the Federalists in Congress, [Page 211] many of whom had been in the Philadelphia Convention, the state ratifying conventions, or both, took no steps to undermine the ability of the national government to protect itself from enemies without or rebels and traitors within.
If the Second Amendment had responded to the demands of the Pennsylvania minority and similar demands from other Antifederalists, the national government would have been severely, perhaps fatally, weakened from the beginning. Congress would have been unable to regulate the use, ownership, or display of firearms in those places where it has plenary jurisdiction, such as the District of Columbia, the federal territories, or overseas possessions and lands, such as present day Puerto Rico and the Virgin Islands.
At the time of the drafting of the Constitution, "every state had gun control legislation on its books."[77] But, an amendment along the lines of the Pennsylvania Antifederalists' would have prevented such a law in the federal district.[78] It also might have prevented preemptive strikes against pirates, illegal slave traders (after 1808), filibusters preparing for the illegal invasion of Latin American countries,[79] or others gathering weapons for illegal purposes.
As previously discussed, one of the primary reasons for calling the Constitutional Convention was the fear that without a stronger central government the new nation would be unstable, militarily weak, and might not survive. In 1786, disgruntled farmers in western Massachusetts, led by Captain Daniel Shays, had shut down courts and threatened a full-scale civil war in the Bay State. Some militia units had joined the rebels before militiamen from eastern Massachusetts finally dispersed Shays's followers.[80] Shays's Rebellion had deeply frightened the elected political leaders who governed the nation after the Revolution. As Edmund Randolph noted when he introduced the Virginia Plan at the Philadelphia Convention, the "rebellion [that] had appeared . . . in Massts"[81] underscored the need [Page 212] for a stronger government.
The Federalists at the Philadelphia Convention wanted a government that would have the prestige, organizational apparatus, tax revenue, and military power to suppress such rebellions in the future. Indeed, Shays's Rebellion helped convince many of the need for a new constitution with a strong national military.
The kind of amendments that the Pennsylvania minority wanted would have undermined these powers and the new government itself. Such amendments would have crippled the national government's ability to suppress insurrections, regulate trade with the Indians,[82] fight piracy, or even prevent crime in the federal district (now Washington, D.C.), in the federal territories, and wherever else federal jurisdiction existed. Thus, in drafting the Bill of Rights, James Madison and his Congressional colleagues emphatically rejected the sweeping provisions of the Pennsylvania minority and other Antifederalists relating to the military, the militia, and firearms[83] and instead adopted a much more limited amendment, directed at only one particular issue: the preservation of the organized state militias as a military force. The Congressmen of 1789 were not interested in protecting the rights to "killing game," "to fowl and hunt in seasonable times," "to fish in all navigable waters," or even to guarantee that people should be able to "bear arms for the defense of themselves."[84] Congress was certainly on notice that demands for explicit protections of such rights were on the table and could easily have put such language into the Bill of Rights. Madison, along with the rest of Congress, was well aware of the Reasons of Dissent, which was printed in numerous Pennsylvania papers, including the important Pennsylvania Packet, and was also published as a broadside.[85] The fact that Madison and Congress did not propose amendments along the lines demanded by the Pennsylvania minority leads to a prima facie conclusion that they did not intend to incorporate such protections into the Bill of Rights. [Page 213]
IV. THE BILL OF RIGHTS: PRESERVING THE CONSTITUTION
Why is it that Madison and his colleagues rejected the demands of the Pennsylvania Antifederalists on the issues of guns, the militia, and the national military? The Second Amendment, like the others in the Bill of Rights, was designed to preserve the Constitution as written in 1787 by adding to the Constitution a bill of rights that did not fundamentally alter the nature of the national government or significantly limit its powers.
In examining what became the Second Amendment, it is also critical to remember that Madison, who proposed the amendments, had, in fact, little enthusiasm for them. His paternity as the father of the Bill of Rights was truly reluctant.[86] When Madison introduced the amendments to the House of Representatives, he did not argue with passion or conviction for his proposal. He told Congress that he had "never considered" a bill of rights "so essential to the federal constitution" that the lack of one should have been allowed to impede ratification.[87] But, with the Constitution ratified, Madison was willing to concede "that in a certain form, and to a certain extent," a bill of rights "was neither improper nor altogether useless."[88] While proposing amendments that were neither "improper" nor "useless," Madison was careful, as he noted in a private letter to Edmund Randolph, to make sure that "the structure & stamina of the Govt. [were] as little touched as possible."[89] It is this goal of Madison¾to protect the "structure & stamina" of the new government¾that most illuminates the very limited nature of what became the Second Amendment.
In general, Madison saw the Bill of Rights as clarifying the meaning of the Constitution and not fundamentally changing its nature.[90] He had no problem expressly protecting freedom of religion, for example, because he did not think that the purpose of the Constitution was to allow Congress to regulate religion, even where Congress had plenary jurisdiction.[91] Similarly, he had no desire to deny the right of a jury trial in federal prosecutions and so had no [Page 214] problem explicitly protecting that right in the Sixth Amendment.[92] In the same way, Madison did not think that the purpose of the Constitution was to allow the national government to dismantle or disarm the state militias. Since some people feared the Federalists might do this,[93] Madison was willing to put a provision in the Bill of Rights explicitly stating that Congress would not disarm the state militias. At the same time, he had no interest in preventing Congress from regulating weapons in the places where Congress had clear legislative power. Thus, Madison did not accept the sweeping proposed amendments of the Pennsylvania Antifederalists on this issue. Madison had worked for a strong government, with a national army and the power to federalize state militias, at the Philadelphia Convention. He had no interest in undermining this strength in the Bill of Rights either by prohibiting a standing army, removing the power of the national government to control the state militias, or by permitting individual citizens or groups of them to have unfettered access to weapons.[94]
Indeed, given what was accomplished in 1787, it would have been out of character for Congress, dominated as it was by supporters of the new Constitution, to cripple the new government's ability to control dangerous, musket-toting elements of the population like Daniel Shays. Similarly, it would have been out of character to take the citizens' army¾the militia¾and turn it over to the complete control of state governors, who might not be sympathetic to the policies of the national regime. Not surprisingly, in the Bill of Rights, including what became the Second Amendment, Congress did not take such drastic actions.
V. THE BILL OF RIGHTS: A GREAT FEDERALIST VICTORY
It is commonplace among some scholars to view the struggle for the Bill of Rights as a victory for the Antifederalists, the original opponents of the Constitution. At first glance, this argument makes a certain sense. Many Antifederalists argued that they feared a strong central government because the Constitution lacked a bill of rights. If the Constitution had a bill of rights, these Antifederalists claimed, they could then support the system of government created in [Page 215] Philadelphia. Because the Antifederalists asked for a bill of rights, some scholars incorrectly see the adoption of the Bill of Rights as a successful counterattack by the Antifederalists.
This argument is, at best, only half true. Certainly it is unlikely that the Federalists, who completely dominated the new government, would have proposed and passed a bill of rights if the Antifederalists had not called for one. But it is clear that the Bill of Rights adopted by Congress, and sent on to the states, contained only a tiny portion of what the Antifederalists wanted. Moreover, these changes were in many ways the least important in the minds of the Antifederalist leadership, like Patrick Henry and Richard Henry Lee. Hard-core Antifederalists considered the Bill of Rights to be a "tub to the whale,"[95] designed to distract the people away from calling a second convention to substantially rewrite the Constitution.
One insight into the Antifederalist disappointment over the amendments comes from a cursory glance at the order of the states that ratified them. Five of the first six states to ratify the Bill of Rights were Federalist strongholds.[96] Virginia, the state most often associated with the call for a bill of rights, was actually the last state to ratify the ten amendments that became the Bill of Rights.
The story of ratification of the Bill of Rights in Virginia illustrates just how much the Antifederalists' demand for amendments became a defeat for their cause. Patrick Henry, the most powerful political figure in this Antifederalist stronghold, disliked the proposed amendments. Henry had campaigned against the Constitution because he wanted to defeat it and start all over. He used the lack of a bill of rights as an argument against the Constitution; but when offered the Bill of Rights in 1789, he balked.[97] Henry fully understood that a bill of rights would destroy the possibility of achieving his real goal, which was to destroy or completely undermine and remake the new Constitution. Henry and his cohorts correctly realized that if the lack of a bill of rights were no [Page 216] longer an issue, many of the softer Antifederalists would be satisfied with the Constitution and accept the new government. Thus, in the fall of 1789, Virginia's two U.S. senators, William Grayson and Richard Henry Lee, urged their state to defeat the Bill of Rights and to hold out for more sweeping amendments.[98] Following this plan for more than two years, Patrick Henry prevented the Virginia legislature, which he dominated, from ratifying the new amendments.[99] Henry was hoping that in these two years Americans would come to accept his view that the stronger national government was dangerous to the liberty of the people.[100] But, in Virginia, precisely the opposite happened. Two intervening elections sapped much of Henry's strength in the Virginia Assembly, which finally ratified the Bill of Rights in December 1791.[101]
Ultimately the Antifederalists were triple losers. They failed to prevent ratification of the Constitution, they failed to make ratification conditional on the adoption of a whole series of amendments, and in the end, they failed to gain acceptance of what they considered to be their most important amendments. The Virginia Antifederalists, for example, proposed forty separate amendments to the Constitution, including twenty to the "Body of the Constitution."[102] Congress ignored these twenty and a good number of the other twenty that would have made up a "Declaration or Bill of Rights."[103] New York's proposed amendments take up seven printed pages, with fifty-nine separate paragraphs and scores of proposed changes. New Hampshire modestly proposed only twelve changes, and Massachusetts a paltry eight. But, had Congress accepted all, or most, of the proposals from the ratifying conventions of just these four states, along with the demands of the Pennsylvania minority, it would have effectively rewritten the Constitution, creating an entirely different kind of government.
Again, we should not be surprised that this result did not happen. Most Federalists wanted no changes in the Constitution. They believed a bill of rights was unnecessary because the new national government, as a government of limited and enumerated powers, [Page 217] could not threaten fundamental rights and individual liberties. Nevertheless, Federalists in the First Congress were willing to accept amendments that enumerated basic civil liberties and procedural rights or explicitly reaffirmed limitations on the national government that they believed were already in the Constitution of 1787. These amendments were neither designed to affect, nor did they affect, the structure of the Constitution or the new national government formed under it. In presenting them to Congress, Madison was unequivocally "unwilling to see a door opened for a re-consideration of the whole structure of the government, for a re-consideration of the principles and the substance of the powers given."[104] The Bill of Rights was emphatically neither a Constitution,[105] nor a significant alteration of the political relationships created by the Constitution. The Bill of Rights did not shift any political power from the national government to either the states or "the people." It merely clarified the powers, rights, and responsibilities that the national government had under the Constitution.
The hard-core Antifederalists, of course, did not condone Madison's proposed amendments precisely because they believed that the amendments would undermine their cause, while leaving the structure of the Constitution intact. They wanted to "strike at the essence of the System," and either return to the government of the old Confederation "or to a partition of the Union into several Confederacies." [106]
As the "loyal opposition" in the ratification process,[107] the Antifederalists were responsible for placing the demand for a bill of rights on the national agenda. Moreover, their demands forced the Federalists to respond. The accomplishment of the Antifederalists was to pressure the Federalists to add a bill of rights to the Constitution. But in a sense, this "accomplishment" was their failure. The Antifederalists, especially the hard-core opponents of the Constitution led by Patrick Henry, did not want to modify the Constitution with a bill of rights so that it would be more palatable to the people; they wanted to totally undermine the Constitution or [Page 218] replace it with something else. This, they failed to achieve.
VI. FEDERAL POWER TO SUPPRESS VIOLENCE
In addition to creating national military powers, the Constitution contains a series of clauses that empowered Congress to suppress the activities of people who threatened the public order. Certainly the framers anticipated that most law enforcement would be at the local level, but they also knew that some would be at the national level.
Thus, Congress had the power to punish counterfeiting,[108] to "punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,"[109] to "suppress Insurrections and repel Invasions," by employing the militias,[110] and to suppress the African Slave Trade after January 1, 1808.[111] Congress could also "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."[112] The U.S. government also was obligated to "protect" each state from "Invasion" and "domestic Violence."[113]
As previously noted, some of the impetus for the Constitution stemmed from the violence of Shays's Rebellion and the general fear of anarchy. This motivation was clear during the Convention, as Randolph's first speech suggests.[114] Even before the delegates met in Philadelphia, those who would emerge as Federalists argued for a strong and vigorous government to defeat anarchy. In the months before the Convention, Alexander Hamilton declared, "It might be said that too little power is as dangerous as too much, that it leads to anarchy, and from anarchy to despotism."[115] And, just as the Convention began serious work, Henry Knox, who was not a delegate, wrote that "we are verging fast to anarchy and that the present convention is the only means to avoid the most flagitious evils that ever afflicted three millions of freemen."[116] [Page 219]
At the Convention, delegates picked up on this theme and tied it to the military. Charles Pinckney argued that a strong national government was necessary to create "a real military force."[117] He noted that "the United States had been making an experiment without" a strong military, "and we see the consequence in their rapid approaches toward anarchy."[118] James Wilson believed the nation had to worry about "anarchy & tyranny within" but also needed to be strong to avoid "wars" and to make "treaties."[119] Wilson argued that a weak government would be "liable to anarchy & tyranny."[120] Hugh Williamson feared that "the probable consequences of anarchy in the U.S." would be military force against the states, which in turn would lead to tyranny.[121] Thus, the framers wrote a Constitution that made the state militias subordinate to the national government and guaranteed that the national government would have the power to enforce its laws.
After the Convention, Federalists hammered home this theme. Writing as "Publius," Alexander Hamilton argued that "[a] Firm Union will be of the utmost moment to the peace and liberty of the States" and would prevent "domestic faction and insurrection."[122] The alternative was a society "kept in a state of perpetual vibration between the extremes of tyranny and anarchy."[123] Only the Constitution could prevent the recurring "tempestuous waves of sedition and party-rage."[124] With the Constitution ratified, George Washington could only hope the new system would work as planned:
The business of this convention is as yet too much in embryo to form any opinion of the conclusion. Much is expected from it by some; not much by others; and nothing by a few. That something is necessary, none will deny; for the situation of the general government, if it can be called a government, is shaken to its foundation, and liable to be overturned by every blast. In a word, it is at an end; and, unless a remedy is soon applied, anarchy and confusion will inevitably ensue.[125] [Page 220]
Madison was not even as hopeful as the great man from Mount Vernon. In private correspondence, Madison argued that the government created by the Constitution was still too weak. Shortly before the Convention ended, he wrote in secret code to Jefferson, who was still in France, that the plan of government "will neither effectually answer its national object nor prevent the local mischiefs which every where excite disgusts agst the state governments."[126] In late October, he still bemoaned that the Convention had not adopted his proposal to give Congress a "constitutional negative on the laws of the States."[127]
Clearly, supporters of the Constitution, who thoroughly dominated Congress in 1789 when the Bill of Rights was written, had no intention of undoing their handiwork with a series of debilitating amendments that would weaken the national government. They emphatically rejected attempts to undermine the power of the government to control weapons of war and to suppress a revolution. For example, they rejected a New Hampshire suggestion for an amendment to prohibit the creation of a standing army "in time of Peace unless with the consent of three fourths of the Members of each branch of Congress."[128] Though the New York Antifederalists would have banned standing armies altogether,[129] the First Congress would not accept such a limitation. It refused to compel the nation to wait until the rebellion had actually started before it could organize an army and step in to disarm another Daniel Shays.[130]
Not surprisingly, then, when Madison reluctantly and unenthu-siastically[131] proposed his amendments, he wanted to be certain that "the structure & stamina of the Govt. [were] as little touched as possible."[132] He also "limited" his proposed amendments "to points which are important in the eyes of many and can be objectionable in those of none."[133] Thus, Madison tried to avoid controversial political issues affecting the structure of the government and concentrated on [Page 221] alterations that would preserve individual liberty. He thought that "nothing of a controvertible nature ought to he hazarded" because that might defeat the amendments and lead to renewed support for a second convention.[134] He told Edmund Randolph that he had avoided anything of a "controvertible nature" because of the "caprice & discord of opinions" in the House and Senate, which had to approve the amendments by a two-thirds vote, and in the state legislatures, three-fourths of which had to approve the amendments.[135] The amendments had a "twofold object of removing the fears of the discontented and of avoiding all such alterations as would either displease the adverse side, or endanger the success of the measure."[136]
Finally, we must remember that those who created the United States understood the nature of a revolution¾they had participated in one. In the Declaration of Independence they certainly asserted the right "to alter or to abolish" any government.[137] But, with a democratic republic created by the Constitution, the need for a violent revolution disappeared. Every two years there would be an opportunity to participate in an orderly process to replace the existing government. Some of the very early state constitutions, written during the Revolution itself, not surprisingly endorsed the right of revolution. However, the framers of 1787 did not endorse such a right. The Constitution does not have a suicide clause in it, and no one intended that it should have such a clause. Indeed, as John Marshall said even before the Convention finished its deliberations, "nothing but the adoption of some efficient plan from the Convention can prevent Anarchy first, & civil Convulsions afterwards."[138] After the Convention, Oliver Ellsworth, who would precede Marshall as Chief Justice, summed up this position: "Anarchy, or a want of such government as can protect the interests of the subjects against foreign [Page 222] and domestic injustice, is the worst of all conditions."[139] The goal was to prevent anarchy, violence, and rebellions. This prevention was accomplished by controlling the militias and the army and by retaining the right to limit weapons to those who formed "A well regulated Militia."
President Jackson made this point clear during the Nullification Crisis, when warning South Carolina to step back from the brink of secession and constitutional disaster. Responding to the Palmetto State's claim to a Revolutionary-era heritage, Jackson reminded the nullifiers that they were "free members of a flourishing and happy Union," and that "there [was] no settled design to oppress [them]."[140] Jackson's point, which Lincoln would reiterate to the South in 1861, was that the Constitution contemplated numerous ways for unhappy citizens, or even states, to protest federal legislation, but that these means did not include nullification, secession, or any other sort of rebellion.
The Constitution provided for a standing army and for the national government to arm and provide rules and regulations for state militias, which could be federalized when necessary. The Second Amendment allows for these state militias, which were "well regulated" under statutes passed by Congress, but the Amendment was clearly not designed to insure some sort of permanent revolutionary potential. Indeed, allowing for armed, unregulated citizens, who could threaten the public order and the national state, was unnecessary, unwise, and utterly in conflict with the "more perfect Union" the framers had created in Philadelphia. The "father of the Constitution," as Madison is often called, did not draft the Bill of Rights to undo his hard work at Philadelphia.
VII. ANTIFEDERALIST FEARS OF FEDERAL MILITARY POWER
Antifederalists, of course, thought the Constitution created a government that was too strong. Hostile to a strong central govern-ment, they feared the concentration of power, including military power, in the hands of the new president and Congress. Among their many fears, they worried that the military clauses in the Constitution might [Page 223] threaten the states in one of two quite contradictory ways.
Some Antifederalists feared that the ability of the new government to nationalize the state militias was the first step towards a military dictatorship. As early as 1783, George Washington had argued for stronger national control over the militias. In his Sentiments on a Peace Establishment,[141] Washington argued for drawing a select group of men, either as volunteers or draftees, from the state militias to serve in a national army.[142] As many scholars have noted, and as his own letters show, Washington had little use for the militias and would probably have happily seen them wither away while a trained, professional army maintained the defense of the nation.[143] Henry Knox, the secretary of war under the Articles of Confederation, proposed a less drastic form of nationalized training for the state militias and their removal from the states, when necessary, for no more than a year at a time.[144] However, such proposed reforms were fruitless, because the states rejected them.[145] Virginia tried to institute Washington's modest proposal that militia officers be chosen on the basis of ability, rather than social class and connections, but that reform fell flat on its face.[146]
The Constitution offered a remedy for these proposals by allowing for the nationalization of militia training and rules and by allowing the federalization of the militias under the president's control when necessary "to execute the Laws of the Union, suppress Insurrections and repel Invasions."[147] But such powers truly frightened the Antifederalists.
"Philadelphiensis" feared that the "president general" would be able to "order . . . the militia to exercise, and to march when and where he pleases."[148] In Maryland, an Antifederalist writing as "A Farmer and Planter," worried that with such a provision, the national government would levy oppressive taxes and that when people [Page 224] refused to pay them, the
great Lords and Masters . . . [would] send the militia of Pennsylvania, Boston, or any other state or place, to cut [their] throats, ravage and destroy [their] plantations, drive away [their] cattle and horses, abuse [their] wives, kill [their] infants, . . . ravish [their] daughters, and live in free quarters, until [they] get into a good humour, and pay all that they may think proper to ask of [the people], and [they] become good and faithful servants and slaves.[149]
The new government would, in effect, be able to federalize the militia of one state and use it against another.[150] The national government might also be able to use a local militia, under federal officers, to attack their neighbors. This ability, the opponents of the Constitution feared, would be the first step to tyranny.
The next step would be to actually take over the state militias, ordering them here and there to suppress liberty. Mercy Otis Warren, writing as "A Columbian Patriot," echoed this fear, complaining that under the Constitution "the militia of the country, the bulwark of defence, and the security of national liberty [would] no longer [be] under the controul of civil authority" but instead would be under the control of the president and the Senate.[151] Warren, carried away by her own rhetoric, referred to the president and Senate as "the Monarch" and "the aristocracy."[152]
While some Antifederalists feared the federalization of the militia, others feared the national government would simply destroy the militia. John DeWitt, writing in Massachusetts, complained that the organizers of the new government "[did] not mean to depend upon the citizens of the States alone to enforce their powers."[153] DeWitt argued that the only protection of a free state against tyranny was "a well regulated militia, composed of the yeomanry of the country" which had always "been considered as the bulwark of a free [Page 225] people."[154] He worried that the national government would "neglect to arm, organize and discipline the men" in the state militias,[155] thus making them weak and ineffective. Then a standing army could easily defeat the state militias and take over the nation. Similarly, Brutus, writing in New York, predicted that men would be "impressed from the militia" and forced into the national army.[156]
Other Antifederalists tied the taxing power to the creation of a national army. Brutus devoted an entire essay to the combined power of the United States "to borrow money . . . and to raise and support armies."[157] Indeed, a common theme among many Antifederalists was the fear of national taxes that would be collected by military force. One way of accomplishing this end was to cripple the military and thus prevent the national government from having the force to suppress tax rebellions. The Antifederalists could not figure out whether this force would be the federalized militia, as "A Farmer and a Planter" feared, or a standing army that could easily defeat a demoralized and untrained state militia, as DeWitt feared. But, either way, the strong national government, with its strong military, was the enemy. The plans of Washington outlined in his Sentiments on a Peace Establishment,[158] or the less drastic suggestions of Secretary of War Knox, only confirmed the dangers imposed by the military clauses of the new constitution. By 1787-88 both men had become ardent Federalists, and everyone assumed that if the Constitution were ratified, Washington would be president. The Antifederalists had strong reasons to fear that the new government might indeed destroy the state militias.
Thus, the opponents of the Constitution proposed amendments to limit the national government, including many changes in the military structure. As we know, these proposals failed to gain any substantial support in Congress.
VIII. THE DEBATE IN CONGRESS AND THE LANGUAGE OF THE AMENDMENT
There is frustratingly little of the Congressional debates over the [Page 226] Bill of Rights available to modern scholars. The Senate for this period kept no records of its debates, but only records of bills, motions, and votes. The House spent little time on the drafts that became the Second Amendment. The debate began with Madison's first draft of the proposed amendment, which stated that, "A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall b
27th January 2013
Chicago-Kent Law Review
Symposium on the Second Amendment, vol. 76, 2000: 195
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
"A WELL REGULATED MILITIA": THE SECOND
AMENDMENT IN HISTORICAL PERSPECTIVE
Paul Finkelman*
About the author: A specialist in American legal history, constitutional law, and race and the law, Professor Paul Finkelman is the author of more than 150 scholarly articles and more than 30 books. His op-eds and shorter pieces have appeared in the New York Times, the Washington Post, USA Today, and on the Huffington Post. He was recently named the ninth most cited legal historian according to "Brian Leieter's Law School Rankings."
A well regulated Militia, composed of gentlemen freeholders, and other freemen, is the natural strength and only stable security of a free Government. George Mason[1]
The history of the Second Amendment is rooted in English conflicts between the king and his people. It involves the relationship between the standing army and the militias during and after the English Civil War. It also involves the struggles of the colonists against the Crown before and during the Revolution.
This English background is useful, and certainly interesting, but the history of the drafting and adoption of the Second Amendment emerges out of far more immediate events. The failure of the national government under the Articles of Confederation prompted the call for a convention to revise the Articles.
While American leaders were contemplating calling a convention to revise the Articles, violent resistance to traditional law enforcement¾most notably Shays's Rebellion in Massachusetts¾underscored the sense of crisis that many Americans felt. Farmers led by Captain Daniel Shays marched on local courthouses in western Massachusetts, shutting down the courts and intimidating judges and others. Eventually militia companies from eastern Massachusetts dispersed Shays and his followers.
The delegates to the Philadelphia Convention met with this event fresh in their memories and with the knowledge that the government under the Articles of Confederation would probably be [Page 196] helpless in a similar situation. Thus, when he introduced the Virginia Plan at the Philadelphia Convention, Governor Edmund Randolph "commented on the difficulty of the crisis" facing the nation and spoke of "the necessity of preventing the fulfillment of the prophecies of the American downfall."[2] Randolph "then proceeded to enumerate the defects" in the present government, noting that "the confederation produced no security against foreign invasion; congress not being permitted to prevent a war nor to support it by their own authority" and that "neither militia nor draughts being fit for defence on such occasions, enlistments only could be successful, and these could not be executed without money."[3] He pointed out that "the federal government could not check the quarrels between states, nor a rebellion."[4] He expressed his admiration for those who had written the Articles of Confederation, but noted that they had produced that document when the inefficiency of requisitions was unknown no commercial discord had arisen among any states no rebellion had appeared as in Massts.¾foreign debts had not become urgent¾the havoc of paper money had not been foreseen¾treaties had not been violated¾and perhaps nothing better could be obtained from the jealousy of the states with regard to their sovereignty.[5]
Most of the Convention delegates agreed with Randolph's analysis and quickly moved from revising the Articles of Confederation to writing a wholly new Constitution. In the end, they produced a document that strengthened the national government and provided a framework for a viable national defense. Opponents of the new form of government¾Antifederalists who feared a strong national government¾proposed numerous amendments in the state conventions called to ratify the Constitution. The Antifederalists also expressed their fears of the new Constitution in an enormous amount of public commentary.[6]
Though the public commentary fell into two general classes, the [p. 197] bulk of the proposed amendments were designed to remake the Constitution by severely limiting the power of the national government. If the Antifederalists had succeeded, the United States would have reverted to a decentralized collection of sovereign states with a weak national congress, an almost invisible federal judiciary, and a powerless military with virtually no standing army.
Not surprisingly, the Federalists who dominated the First Congress rejected all of these structural changes and did little to alter the power of the national government under the new Constitution. The Federalists did, however, offer a series of amendments that, for the most part, recognized existing limitations on the national government under the new Constitution.
The Bill of Rights confirmed that the national government would not trample on the rights of conscience, deny people due process of law, or impose cruel and unusual punishments on convicted criminals. While some of its provisions actually created new rights¾such as the right to counsel in the Sixth Amendment¾most of the amendments simply confirmed what the national government could not do under the Constitution. The Second and Tenth Amendments reconfirmed existing relations between the states and the national government but did not create any new rights or structural relationships. In particular, the Second Amendment reconfirmed that even though the national Congress would have the primary responsibility for arming and organizing the state militias, the states could maintain their own militias, if Congress failed to do its job.
I. THE ANTIFEDERALISTS' GOALS
During the debates over ratification, Governor Patrick Henry of Virginia and many other Antifederalists used the absence of a bill of rights in the Constitution to galvanize opposition to ratification. They persisted, from beginning to end, in claiming that the Constitution would create a tyranny and that the failure to insert a bill of rights was an indication of the desire of the framers to take away the liberties of the American people.
However, for the most dedicated opponents of the Constitution, the demand for a bill of rights was fundamentally a ruse. They truly hoped to defeat the Constitution and thus either leave the Articles of Confederation in place or force a second convention that would have created a substantially weaker national government than the Philadelphia Convention had proposed. [Page 198]
The Antifederalist plan for stopping ratification of course ended in July 1788, when they were outmaneuvered in their two most important strongholds¾Virginia and New York. New Hampshire's ratification had supplied the necessary ninth state to have the Constitution go into effect. Ratification in Virginia and New York not only put the Federalists well over the top but, more importantly, brought the most populous state (Virginia) and the state with the nation's most important seaport (New York) into the government.
As they met with defeat in one state after another, the Antifederalists fell back to their secondary position of demanding amendments to alter the nature of the government.[7] Thus, in a number of the states, the defeated Antifederalists proposed amendments that they hoped would be added after ratification. Though this was not an ideal strategy for the Antifederalists, it was their last hope. Some of these amendments contained suggestions that would have created a bill of rights, but most of the Antifederalist proposals were crippling amendments that would have resulted in a weaker Constitution.
The Antifederalists wanted the state ratifying conventions to endorse their proposed amendments. But this support was not always possible since the Antifederalists negotiated from a position of weakness compared to the Federalist majorities in the state conventions.[8] In Pennsylvania, for example, the Federalist majority completely ignored the Antifederalists, who then issued their Reasons of Dissent as a pamphlet.[9] In Maryland, the Antifederalists met with the same fate and resorted to a newspaper publication of their proposed amendments.[10] As Herbert Storing notes, the Maryland [Page 199] Antifederalists tried to get the convention to endorse their amendments in return for a promise that the Antifederalists would support the Constitution. But, having successfully ratified the Constitution, the Maryland Federalists "brushed aside" the deal offered by the Antifederalists who had just been soundly defeated.[11]
On the other hand, in Massachusetts, New Hampshire, and Virginia, the Federalist majorities included the proposed amendments as part of the official proceedings of the ratifying conventions to placate large Antifederalist minorities. This compromise also occurred in New York. Though the Antifederalists were the majority in that state, a substantial minority of them voted to ratify the Constitution because ten states had already done so. In addition, growing support for the Constitution in and around New York City convinced many Antifederalist delegates at the New York convention that their constituents now wanted ratification.[12] John Jay, a Federalist leader, helped bring this about by a preemptive strike: he proposed that the convention delegates attach a list of recommended amendments to its ratification. This arrangement "embarrassed the Antifederalists"[13] by compelling them to admit the weakness of their position and, in a sense, forcing them to accept the best deal they could negotiate with the Federalists. Jay's move led to a compromise with the more moderate Antifederalists, who agreed to vote for ratification in exchange for Federalist endorsement of recommended amendments. To sweeten the deal, Jay also offered to support a circular letter calling for a second convention; this was a "sham compromise that was in fact a total surrender" by the Antifederalists.[14] In the end, enough Antifederalists voted for ratification to get the document through the New York convention. Appended to the ratification was an absurdly long list of proposed changes that included some thirty-two amendments plus twenty-five statements of principles.[15]
By the end of the ratification process, the conventions in [Page 200] Massachusetts,[16] South Carolina,[17] New Hampshire,[18] Virginia,[19] and New York[20] had appended to their ratification documents various proposed amendments to the Constitution. In addition, the Antifederalists in Pennsylvania[21] and Maryland[22] had published their own recommended amendments. The officially endorsed amend-ments numbered over one hundred, but many of the separate amendments actually covered many topics. Thus, the total number of proposed amendments was at least two hundred. Many concerned issues we normally think of as Bill of Rights protections. However, the majority of the Antifederalist demands were structural in nature, designed to remake the Constitution by weakening the national government. By eliminating duplications, "about 100 separate proposals can be distinguished," and a "clear majority" of these called for structural changes.[23]
When Madison proposed what became the Bill of Rights in Congress, he ignored virtually all of the structural proposals, which, not surprisingly, infuriated the hard-core Antifederalists. Indeed, the refusal of Madison and his committee to even consider the long list of structural changes proposed by the Virginia Ratifying Convention led Virginia's two senators, William Grayson and Richard Henry Lee, who were the only Antifederalists in the U.S. Senate, to publicly denounce the proposed amendments.[24] They did not approve of Madison's proposed amendments because they believed the amendments would undermine their cause, prevent the calling of a second convention, and yet leave the structure of the Constitution [Page 201] intact. As Madison explained to Jefferson, even before the Constitution was ratified, the Antifederalists wanted to "strike at the essence of the System," and either return to the government of the old Confederation, "or to a partition of the Union into several Confederacies."[25]
A good example of what the Antifederalists really wanted can be found in the Virginia convention's list of forty proposed amendments. The first twenty proposals formed "a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable Rights of the People."[26] Only a few proposals were structural in nature, such as a requirement for rotation in office and a prohibition on hereditary offices.[27] Most proposals dealt with the civil liberties that are today protected by the Bill of Rights subsequently adopted in 1791.[28]
After this list of twenty amendments, which would form a "Bill or Declaration of Rights," the Virginia delegates wrote twenty more proposed changes called "Amendments to the Body of the Constitution."[29] With the exception of one proposal dealing with juries, this list contained proposals that would have remade the powers of the government and revamped the political process. Many of the proposals would have hamstrung the operations of the national government, weakened all three branches of the government, and rendered the system more cumbersome.
This second list, which was by far the more important list for Antifederalists like Patrick Henry, proposed a wholesale remaking of the system of government. The Virginia Antifederalists wanted super-majorities in Congress for many important government functions, including: (1) a three-fourths majority of both houses for all noncommercial treaties, (2) a two-thirds majority of the Senate for the adoption of all commercial treaties, (3) a two-thirds majority in each house of Congress for all regulations of commerce (which the Antifederalists called navigation laws), and (4) a two-thirds majority in Congress to maintain a peacetime army.[30] They also clamored for mandatory term limits (rotation in office, as they called it) for [Page 202] presidents and severely limited federal jurisdiction over what became the District of Columbia.[31] Aside from the Supreme Court, these Antifederalists would have allowed only "courts of Admiralty."[32] They would have permitted impeachment trials of senators by "some Tribunal other than the Senate" and limited the power of the national government to collect taxes in the states.[33]
Antifederalists in other states wanted similar changes that would have cut the heart out of the new Constitution. Virtually all the Antifederalists would have rewritten the judiciary article to the point where the federal court system would have been unrecognizable and our resulting constitutional history would have been altered in unimaginable ways.[34] Delegates to the New York Ratifying Convention, with its large Antifederalist majority, proposed structural changes similar to those the Virginia Antifederalists demanded. A Constitution amended to satisfy these New Yorkers would have limited federal diversity jurisdiction only to cases involving land grants, prohibited any federal treaty from operating against a state constitution (thus undermining the Supremacy Clause), and proscribed Congress from granting monopolies.[35] In addition, the New Yorkers would have limited power with the following requirements: (1) a two-thirds majority in both houses of Congress to borrow money or to declare war, (2) strict temporal limitations on the suspension of habeas corpus, (3) mandatory rotation in office for U.S. senators, and (4) prohibitions on federal capitation taxes and on the creation of intermediate appellate federal courts.[36] The New Yorkers also suggested limitations on the president's pardon power and on the federal power to adopt bankruptcy laws.[37] Antifederalists in Massachusetts and New Hampshire similarly sought to limit federal court jurisdiction, prohibit the federal government from granting monopolies, and restrict the federal government's power to tax.[38]
The fact that the majority of Antifederalist proposals were structural, rather than libertarian, underscores the fact that the most [Page 203] prominent Antifederalists were only marginally interested in a bill of rights. Indeed, among the hard-core Antifederalists it is clear that the argument about a bill of rights was, for the most part, a stalking horse for their larger goal¾to undermine the strength of the new central government. Antifederalist leaders like Henry and Lee really wanted to defeat the Constitution and either go back to the old system or force a second convention where they could rewrite the document along the states' rights lines that interested them. But, having failed to defeat the Constitution, they strove for crippling amendments that went to the very structure of that document. James Madison believed that the Antifederalist leaders were really involved in a "conspiracy agst. direct taxes" which was "the real object of all their zeal in opposing the system."[39] Madison believed their ultimate goal was to destroy the power of the national government to levy any taxes and thus "re-establish the supremacy of the State Legislatures."[40] Thus, they vociferously demanded a bill of rights before the Constitution was ratified in hopes that the purported lack of libertarian protections would persuade more moderate Americans to help them defeat ratification. But, once the Constitution was ratified, they were no longer interested in a bill of rights and instead wanted a wholesale restructuring of the Constitution.
This quick overview of the major Antifederalist demands illustrates how out-of-step they were with the Federalist majorities in the ratifying conventions and how decisively they were defeated in 1787-88, when the Constitution was ratified. Similarly, they were even more out-of-step with the massive Federalist Congressional majority in 1789, which proposed the Bill of Rights. In 1789-91, the hard-core Antifederalists suffered their final defeat, as Federalists and moderate Antifederalists accepted the Bill of Rights, and with it, the victory of the Constitution itself.
The Second Amendment arose out of the conflict between Federalists and Antifederalists over those portions of the Consti-tution that dealt with the militia and the national army. But it was ultimately tied to the larger Federalist-Antifederalist conflict over the nature of the new government itself. [Page 204]
II. THE CONSTITUTION, THE MILITIA, AND THE NATIONAL ARMY
The framers in Philadelphia gave Congress and the president shared responsibility for the ultimate control of the militia. They also gave state governments important responsibilities and powers in organizing and training militias, while at the same time taking ultimate authority from the states.
Article I of the Constitution gives Congress power to "declare War,"[41] "to raise and support Armies,"[42] to "maintain a Navy,"[43] to make "Rules for the Government and Regulation of the land and naval Forces,"[44] to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,"[45] and "to provide for organizing, arming, and disciplining, the Militia."[46] Furthermore, Article I declares that the states may not "keep Troops, or Ships of War in time of Peace."[47] Article II makes the president of the United States the "Commander in Chief of the Army and Navy" and "of the Militia of the several States, when called into the actual Service of the United States."[48] These provisions also contain two important limitations. Congress can only appropriate money for the military for two years,[49] and the states retain the power to appoint all militia officers and to train the militia, provided this training complies with "the discipline prescribed by Congress."[50]
Taken together, these provisions contemplated two levels of military protection for the new nation: (1) a national army created and governed solely by Congress and ultimately under the authority of the president in his capacity as commander in chief, and (2) a system of state militias, essentially organized and under control of the states, but subject to regulation by Congress and to "federalization" at the command of the president. Part of that regulation included the idea that the national government had the power¾and the obligation¾to provide arms for the local militias.[51] As Rufus King [Page 205] explained at the Convention, "arming meant not only to provide for uniformity of arms, but included authority to regulate the modes of furnishing, either by the militia themselves, the State Governments, or the National Treasury."[52] Thus, the defense of the United States would rely on both the state militias and the standing army.
For a variety of reasons, most Antifederalists feared these arrangements. They were most concerned about the federal standing army. According to the traditional Whig and Republican ideology of the period, a standing army threatened the liberties of a free people.[53] This argument was rooted in English history, where the army was traditionally a remote mercenary force, disconnected from the people, and under the direct control of a hereditary monarch. The experience of the Revolution also led to hostility for the standing army. For example, in 1770, after Lord Hillsborough sent British troops to American soil, Benjamin Franklin reportedly felt that the British army had been sent to silence the protests of the colonial settlers, rather than cure the problems of which they complained.[54] The Declaration of Independence, which Franklin later helped write, polemically, but accurately, included the standing army in its laundry list of complaints against the king:
He has kept among us, in times of peace, Standing Armies without the Consent of our Legislature.
He has affected to render the Military independent of and superior to the Civil Power.
He has . . . given . . . his Assent to . . . acts of pretended Legislation:
For quartering large bodies of armed troops among us.[55]
Madison and other Federalists believed that the Constitution directly responded to these issues in several ways. In the Constitution, the military was triply under civilian control: Congress regulated all branches of the military, the president was the ultimate commander in chief of all the military, and the governors controlled the state militias when not under federal authority. Meanwhile, appropriations for the military were limited to two years, thus preventing a true standing army from taking control. The only [Page 206] "military" provision of the Declaration not directly addressed by the Constitution was the fear of the "quartering of large Bodies of Troops among us." Wisely, the framers left that problem to the political process. Given the close proximity to the British in Canada, the Spanish in the west, and Native Americans everywhere, it would have been foolish indeed to prohibit the placement of troops close to population centers.[56] Ironically, of course, modern civic leaders across the nation avidly compete for the location of forts and bases in their communities. The complaint of many communities like Fort Dix, New Jersey, is that Congress, the president, or some faceless base-closing commission has refused to continue to quarter "large Bodies of Troops among us."
The Antifederalists proposed amendments that would have altered these provisions of the Constitution. Had the Antifederalists succeeded, the United States would have become a fundamentally different, and weaker, nation. However, Madison and his colleagues in Congress soundly rejected the Antifederalist proposals.
III. ANTIFEDERALIST HOPES: THE CASE OF THE PENNSYLAVANIA MINORITY
At the end of the Pennsylvania Ratifying Convention, the Antifederalists were soundly defeated. After that state convention, they published their Reasons of Dissent.[57] Part of this document contained a list of fourteen proposed amendments to the Constitution. Some of these proposals¾those dealing with the protection of individual libertarian rights and legal due process¾were later incorporated, almost word-for-word, into the Bill of Rights. The essence, and in some places the exact language, of the Free Exercise [Page 207] Clause[58] and the Free Press and Speech Clauses[59] of the First Amendment are found in these fourteen proposals, as are the essence and language of the Fourth,[60] Fifth,[61] Sixth,[62] Seventh,[63] and Eighth[64] Amendments. Elements of the Tenth Amendment are also found in the proposals.[65] Congress ignored a number of other proposed amendments on taxation, the size of the House of Representatives, the power of the federal courts, and treaty-making power.
The Pennsylvania Antifederalists also proposed amendments concerning the army, the militia, the right to bear arms, and the right to hunt. These amendments addressed at least six separate issues: (1) the right of self-protection through the ownership of weapons, (2) the right to serve in the militia, (3) the right to hunt and fish, (4) the prevention of a standing army, (5) the power of Congress over the states, and (6) the power of the states to control their own armies or militias.[66] The proposals, which are found in three of the fourteen [Page 208] amendments offered by the Pennsylvania minority, help us understand the intentions of the framers of the Second Amendment. This understanding, however, is a negative one. By seeing what the framers of the Second Amendment did not do, we can better understand what they did do.
Had the proposals of the Pennsylvania Antifederalists on this issue been written into the Bill of Rights, the Second Amendment might be the least controversial of the first ten Amendments. It is of utmost significance, however, that unlike other aspects of the Pennsylvania proposals, which were incorporated into the Bill of Rights almost word-for-word, Madison and his colleagues in the First Congress emphatically rejected the goals and the language of the Pennsylvania Antifederalists on these issues.
Thus, it is useful to consider what Congress might have written, but did not. Number Seven of the amendments listed in the Reasons of Dissent provided
[t]hat the people have a right to bear arms for the defense 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; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.[67]
Number Eight, an entirely separate provision, asserted that:
The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times, on the lands they hold, and on all other lands in the United States not enclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein by any laws to be passed by the legislature of the United States.[68]
Number Eleven from the dissenters' list was the only one that contained two separate paragraphs. At first glance the paragraphs seem entirely separate and oddly juxtaposed. Careful examination suggests a connection. The first paragraph declared
[t]hat the power of organizing, arming, and disciplining the militia (the manner of disciplining the militia to be prescribed by Congress) remain with the individual states, and that Congress shall not have authority to call or march any of the militia out of their own state, without the consent of such state, and for such length of [Page 209] time only as such state shall agree.[69]
The second paragraph of Number Eleven asserted "that the sovereignty, freedom, and independency of the several states shall be retained, and every power, jurisdiction, and right which is not by this constitution expressly delegated to the United States in Congress assembled."[70] This second paragraph, when tied to the previous one, underscores the connection many Antifederalists saw between state sovereignty and the control of the state militia.
If Congress in 1789 had accepted these proposals of the Pennsylvania minority, then one might persuasively argue that the Constitution, as amended, guaranteed a personal and individual right of Americans to own weapons "for the defense of themselves and their own state, or the United States, or for the purpose of killing game."[71] Both the personal self-defense interests and the "American sportsman" interests of organizations of gun owners would then have been explicitly protected by the Bill of Rights. We might argue today about what sort of weapons are protected. It is not clear that such provisions would today protect the private ownership of Saturday night specials, assault rifles (however Congress might define them), submachine guns, sawed-off shotguns, bazookas, or flamethrowers. But, whatever fell in or out of the protected arena, the constitutional principle of private ownership of weapons would have been clear.
Had Congress added these provisions to the Bill of Rights, we would also have a very different country than we have today, assuming, of course, that we still would have a country. It is entirely possible that the provisions limiting both a standing army and the power of the national government to call up the militia would have long ago led to a destruction of the nation from either outside forces or internal disruptions.
If we contemplate the implications of the Pennsylvania proposals¾especially in light of subsequent developments in American history¾we immediately see why Congress completely rejected the Pennsylvanians' demands for state control of the militia and for personal ownership of guns.
Such provisions might have prevented the Washington administration from effectively suppressing the Whiskey Rebellion or the Madison administration from calling out troops to face down the [Page 210] British in 1812. Without the ability to call up the militia, President Andrew Jackson might not have successfully stood up to the nullificationists in South Carolina.[72] In responding to the Nullification Proclamation in 1832, President Jackson reminded the citizens of South Carolina that "disunion by armed force is treason,"[73] and made it clear that this behavior would be met by military force equal to the task of crushing the rebellion. This stance would not have been possible if the states had retained full control of the militias or if the national government had been precluded from disarming rebellious citizens. Similarly, if the Pennsylvania Antifederalists had succeeded, it is unlikely that the Pierce administration could have used the Massachusetts militia to help return the fugitive slave Anthony Burns from Boston in 1854.[74]
Then, of course, there is the war of 1861-65¾variously called the Civil War, the War Between the States, the War for Southern Independence¾but rarely any more called by its only official name, the War of the Rebellion.[75] Had the restrictive provisions of the Pennsylvania minority been enacted, President Lincoln might have been unable to call out the state militias to suppress the rebellion.
Madison and his colleagues could not have predicted the Whiskey Rebellion, the Nullification crisis, or the Civil War. But they were shrewd enough to know that the lack of national military power¾and with it the power to disarm those who are in rebellion or might be in rebellion¾would undermine any national state. Having just created a stronger national state in the wake of Shays's Rebellion and similar rebellions in other states,[76] the Federalists in Congress, [Page 211] many of whom had been in the Philadelphia Convention, the state ratifying conventions, or both, took no steps to undermine the ability of the national government to protect itself from enemies without or rebels and traitors within.
If the Second Amendment had responded to the demands of the Pennsylvania minority and similar demands from other Antifederalists, the national government would have been severely, perhaps fatally, weakened from the beginning. Congress would have been unable to regulate the use, ownership, or display of firearms in those places where it has plenary jurisdiction, such as the District of Columbia, the federal territories, or overseas possessions and lands, such as present day Puerto Rico and the Virgin Islands.
At the time of the drafting of the Constitution, "every state had gun control legislation on its books."[77] But, an amendment along the lines of the Pennsylvania Antifederalists' would have prevented such a law in the federal district.[78] It also might have prevented preemptive strikes against pirates, illegal slave traders (after 1808), filibusters preparing for the illegal invasion of Latin American countries,[79] or others gathering weapons for illegal purposes.
As previously discussed, one of the primary reasons for calling the Constitutional Convention was the fear that without a stronger central government the new nation would be unstable, militarily weak, and might not survive. In 1786, disgruntled farmers in western Massachusetts, led by Captain Daniel Shays, had shut down courts and threatened a full-scale civil war in the Bay State. Some militia units had joined the rebels before militiamen from eastern Massachusetts finally dispersed Shays's followers.[80] Shays's Rebellion had deeply frightened the elected political leaders who governed the nation after the Revolution. As Edmund Randolph noted when he introduced the Virginia Plan at the Philadelphia Convention, the "rebellion [that] had appeared . . . in Massts"[81] underscored the need [Page 212] for a stronger government.
The Federalists at the Philadelphia Convention wanted a government that would have the prestige, organizational apparatus, tax revenue, and military power to suppress such rebellions in the future. Indeed, Shays's Rebellion helped convince many of the need for a new constitution with a strong national military.
The kind of amendments that the Pennsylvania minority wanted would have undermined these powers and the new government itself. Such amendments would have crippled the national government's ability to suppress insurrections, regulate trade with the Indians,[82] fight piracy, or even prevent crime in the federal district (now Washington, D.C.), in the federal territories, and wherever else federal jurisdiction existed. Thus, in drafting the Bill of Rights, James Madison and his Congressional colleagues emphatically rejected the sweeping provisions of the Pennsylvania minority and other Antifederalists relating to the military, the militia, and firearms[83] and instead adopted a much more limited amendment, directed at only one particular issue: the preservation of the organized state militias as a military force. The Congressmen of 1789 were not interested in protecting the rights to "killing game," "to fowl and hunt in seasonable times," "to fish in all navigable waters," or even to guarantee that people should be able to "bear arms for the defense of themselves."[84] Congress was certainly on notice that demands for explicit protections of such rights were on the table and could easily have put such language into the Bill of Rights. Madison, along with the rest of Congress, was well aware of the Reasons of Dissent, which was printed in numerous Pennsylvania papers, including the important Pennsylvania Packet, and was also published as a broadside.[85] The fact that Madison and Congress did not propose amendments along the lines demanded by the Pennsylvania minority leads to a prima facie conclusion that they did not intend to incorporate such protections into the Bill of Rights. [Page 213]
IV. THE BILL OF RIGHTS: PRESERVING THE CONSTITUTION
Why is it that Madison and his colleagues rejected the demands of the Pennsylvania Antifederalists on the issues of guns, the militia, and the national military? The Second Amendment, like the others in the Bill of Rights, was designed to preserve the Constitution as written in 1787 by adding to the Constitution a bill of rights that did not fundamentally alter the nature of the national government or significantly limit its powers.
In examining what became the Second Amendment, it is also critical to remember that Madison, who proposed the amendments, had, in fact, little enthusiasm for them. His paternity as the father of the Bill of Rights was truly reluctant.[86] When Madison introduced the amendments to the House of Representatives, he did not argue with passion or conviction for his proposal. He told Congress that he had "never considered" a bill of rights "so essential to the federal constitution" that the lack of one should have been allowed to impede ratification.[87] But, with the Constitution ratified, Madison was willing to concede "that in a certain form, and to a certain extent," a bill of rights "was neither improper nor altogether useless."[88] While proposing amendments that were neither "improper" nor "useless," Madison was careful, as he noted in a private letter to Edmund Randolph, to make sure that "the structure & stamina of the Govt. [were] as little touched as possible."[89] It is this goal of Madison¾to protect the "structure & stamina" of the new government¾that most illuminates the very limited nature of what became the Second Amendment.
In general, Madison saw the Bill of Rights as clarifying the meaning of the Constitution and not fundamentally changing its nature.[90] He had no problem expressly protecting freedom of religion, for example, because he did not think that the purpose of the Constitution was to allow Congress to regulate religion, even where Congress had plenary jurisdiction.[91] Similarly, he had no desire to deny the right of a jury trial in federal prosecutions and so had no [Page 214] problem explicitly protecting that right in the Sixth Amendment.[92] In the same way, Madison did not think that the purpose of the Constitution was to allow the national government to dismantle or disarm the state militias. Since some people feared the Federalists might do this,[93] Madison was willing to put a provision in the Bill of Rights explicitly stating that Congress would not disarm the state militias. At the same time, he had no interest in preventing Congress from regulating weapons in the places where Congress had clear legislative power. Thus, Madison did not accept the sweeping proposed amendments of the Pennsylvania Antifederalists on this issue. Madison had worked for a strong government, with a national army and the power to federalize state militias, at the Philadelphia Convention. He had no interest in undermining this strength in the Bill of Rights either by prohibiting a standing army, removing the power of the national government to control the state militias, or by permitting individual citizens or groups of them to have unfettered access to weapons.[94]
Indeed, given what was accomplished in 1787, it would have been out of character for Congress, dominated as it was by supporters of the new Constitution, to cripple the new government's ability to control dangerous, musket-toting elements of the population like Daniel Shays. Similarly, it would have been out of character to take the citizens' army¾the militia¾and turn it over to the complete control of state governors, who might not be sympathetic to the policies of the national regime. Not surprisingly, in the Bill of Rights, including what became the Second Amendment, Congress did not take such drastic actions.
V. THE BILL OF RIGHTS: A GREAT FEDERALIST VICTORY
It is commonplace among some scholars to view the struggle for the Bill of Rights as a victory for the Antifederalists, the original opponents of the Constitution. At first glance, this argument makes a certain sense. Many Antifederalists argued that they feared a strong central government because the Constitution lacked a bill of rights. If the Constitution had a bill of rights, these Antifederalists claimed, they could then support the system of government created in [Page 215] Philadelphia. Because the Antifederalists asked for a bill of rights, some scholars incorrectly see the adoption of the Bill of Rights as a successful counterattack by the Antifederalists.
This argument is, at best, only half true. Certainly it is unlikely that the Federalists, who completely dominated the new government, would have proposed and passed a bill of rights if the Antifederalists had not called for one. But it is clear that the Bill of Rights adopted by Congress, and sent on to the states, contained only a tiny portion of what the Antifederalists wanted. Moreover, these changes were in many ways the least important in the minds of the Antifederalist leadership, like Patrick Henry and Richard Henry Lee. Hard-core Antifederalists considered the Bill of Rights to be a "tub to the whale,"[95] designed to distract the people away from calling a second convention to substantially rewrite the Constitution.
One insight into the Antifederalist disappointment over the amendments comes from a cursory glance at the order of the states that ratified them. Five of the first six states to ratify the Bill of Rights were Federalist strongholds.[96] Virginia, the state most often associated with the call for a bill of rights, was actually the last state to ratify the ten amendments that became the Bill of Rights.
The story of ratification of the Bill of Rights in Virginia illustrates just how much the Antifederalists' demand for amendments became a defeat for their cause. Patrick Henry, the most powerful political figure in this Antifederalist stronghold, disliked the proposed amendments. Henry had campaigned against the Constitution because he wanted to defeat it and start all over. He used the lack of a bill of rights as an argument against the Constitution; but when offered the Bill of Rights in 1789, he balked.[97] Henry fully understood that a bill of rights would destroy the possibility of achieving his real goal, which was to destroy or completely undermine and remake the new Constitution. Henry and his cohorts correctly realized that if the lack of a bill of rights were no [Page 216] longer an issue, many of the softer Antifederalists would be satisfied with the Constitution and accept the new government. Thus, in the fall of 1789, Virginia's two U.S. senators, William Grayson and Richard Henry Lee, urged their state to defeat the Bill of Rights and to hold out for more sweeping amendments.[98] Following this plan for more than two years, Patrick Henry prevented the Virginia legislature, which he dominated, from ratifying the new amendments.[99] Henry was hoping that in these two years Americans would come to accept his view that the stronger national government was dangerous to the liberty of the people.[100] But, in Virginia, precisely the opposite happened. Two intervening elections sapped much of Henry's strength in the Virginia Assembly, which finally ratified the Bill of Rights in December 1791.[101]
Ultimately the Antifederalists were triple losers. They failed to prevent ratification of the Constitution, they failed to make ratification conditional on the adoption of a whole series of amendments, and in the end, they failed to gain acceptance of what they considered to be their most important amendments. The Virginia Antifederalists, for example, proposed forty separate amendments to the Constitution, including twenty to the "Body of the Constitution."[102] Congress ignored these twenty and a good number of the other twenty that would have made up a "Declaration or Bill of Rights."[103] New York's proposed amendments take up seven printed pages, with fifty-nine separate paragraphs and scores of proposed changes. New Hampshire modestly proposed only twelve changes, and Massachusetts a paltry eight. But, had Congress accepted all, or most, of the proposals from the ratifying conventions of just these four states, along with the demands of the Pennsylvania minority, it would have effectively rewritten the Constitution, creating an entirely different kind of government.
Again, we should not be surprised that this result did not happen. Most Federalists wanted no changes in the Constitution. They believed a bill of rights was unnecessary because the new national government, as a government of limited and enumerated powers, [Page 217] could not threaten fundamental rights and individual liberties. Nevertheless, Federalists in the First Congress were willing to accept amendments that enumerated basic civil liberties and procedural rights or explicitly reaffirmed limitations on the national government that they believed were already in the Constitution of 1787. These amendments were neither designed to affect, nor did they affect, the structure of the Constitution or the new national government formed under it. In presenting them to Congress, Madison was unequivocally "unwilling to see a door opened for a re-consideration of the whole structure of the government, for a re-consideration of the principles and the substance of the powers given."[104] The Bill of Rights was emphatically neither a Constitution,[105] nor a significant alteration of the political relationships created by the Constitution. The Bill of Rights did not shift any political power from the national government to either the states or "the people." It merely clarified the powers, rights, and responsibilities that the national government had under the Constitution.
The hard-core Antifederalists, of course, did not condone Madison's proposed amendments precisely because they believed that the amendments would undermine their cause, while leaving the structure of the Constitution intact. They wanted to "strike at the essence of the System," and either return to the government of the old Confederation "or to a partition of the Union into several Confederacies." [106]
As the "loyal opposition" in the ratification process,[107] the Antifederalists were responsible for placing the demand for a bill of rights on the national agenda. Moreover, their demands forced the Federalists to respond. The accomplishment of the Antifederalists was to pressure the Federalists to add a bill of rights to the Constitution. But in a sense, this "accomplishment" was their failure. The Antifederalists, especially the hard-core opponents of the Constitution led by Patrick Henry, did not want to modify the Constitution with a bill of rights so that it would be more palatable to the people; they wanted to totally undermine the Constitution or [Page 218] replace it with something else. This, they failed to achieve.
VI. FEDERAL POWER TO SUPPRESS VIOLENCE
In addition to creating national military powers, the Constitution contains a series of clauses that empowered Congress to suppress the activities of people who threatened the public order. Certainly the framers anticipated that most law enforcement would be at the local level, but they also knew that some would be at the national level.
Thus, Congress had the power to punish counterfeiting,[108] to "punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,"[109] to "suppress Insurrections and repel Invasions," by employing the militias,[110] and to suppress the African Slave Trade after January 1, 1808.[111] Congress could also "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."[112] The U.S. government also was obligated to "protect" each state from "Invasion" and "domestic Violence."[113]
As previously noted, some of the impetus for the Constitution stemmed from the violence of Shays's Rebellion and the general fear of anarchy. This motivation was clear during the Convention, as Randolph's first speech suggests.[114] Even before the delegates met in Philadelphia, those who would emerge as Federalists argued for a strong and vigorous government to defeat anarchy. In the months before the Convention, Alexander Hamilton declared, "It might be said that too little power is as dangerous as too much, that it leads to anarchy, and from anarchy to despotism."[115] And, just as the Convention began serious work, Henry Knox, who was not a delegate, wrote that "we are verging fast to anarchy and that the present convention is the only means to avoid the most flagitious evils that ever afflicted three millions of freemen."[116] [Page 219]
At the Convention, delegates picked up on this theme and tied it to the military. Charles Pinckney argued that a strong national government was necessary to create "a real military force."[117] He noted that "the United States had been making an experiment without" a strong military, "and we see the consequence in their rapid approaches toward anarchy."[118] James Wilson believed the nation had to worry about "anarchy & tyranny within" but also needed to be strong to avoid "wars" and to make "treaties."[119] Wilson argued that a weak government would be "liable to anarchy & tyranny."[120] Hugh Williamson feared that "the probable consequences of anarchy in the U.S." would be military force against the states, which in turn would lead to tyranny.[121] Thus, the framers wrote a Constitution that made the state militias subordinate to the national government and guaranteed that the national government would have the power to enforce its laws.
After the Convention, Federalists hammered home this theme. Writing as "Publius," Alexander Hamilton argued that "[a] Firm Union will be of the utmost moment to the peace and liberty of the States" and would prevent "domestic faction and insurrection."[122] The alternative was a society "kept in a state of perpetual vibration between the extremes of tyranny and anarchy."[123] Only the Constitution could prevent the recurring "tempestuous waves of sedition and party-rage."[124] With the Constitution ratified, George Washington could only hope the new system would work as planned:
The business of this convention is as yet too much in embryo to form any opinion of the conclusion. Much is expected from it by some; not much by others; and nothing by a few. That something is necessary, none will deny; for the situation of the general government, if it can be called a government, is shaken to its foundation, and liable to be overturned by every blast. In a word, it is at an end; and, unless a remedy is soon applied, anarchy and confusion will inevitably ensue.[125] [Page 220]
Madison was not even as hopeful as the great man from Mount Vernon. In private correspondence, Madison argued that the government created by the Constitution was still too weak. Shortly before the Convention ended, he wrote in secret code to Jefferson, who was still in France, that the plan of government "will neither effectually answer its national object nor prevent the local mischiefs which every where excite disgusts agst the state governments."[126] In late October, he still bemoaned that the Convention had not adopted his proposal to give Congress a "constitutional negative on the laws of the States."[127]
Clearly, supporters of the Constitution, who thoroughly dominated Congress in 1789 when the Bill of Rights was written, had no intention of undoing their handiwork with a series of debilitating amendments that would weaken the national government. They emphatically rejected attempts to undermine the power of the government to control weapons of war and to suppress a revolution. For example, they rejected a New Hampshire suggestion for an amendment to prohibit the creation of a standing army "in time of Peace unless with the consent of three fourths of the Members of each branch of Congress."[128] Though the New York Antifederalists would have banned standing armies altogether,[129] the First Congress would not accept such a limitation. It refused to compel the nation to wait until the rebellion had actually started before it could organize an army and step in to disarm another Daniel Shays.[130]
Not surprisingly, then, when Madison reluctantly and unenthu-siastically[131] proposed his amendments, he wanted to be certain that "the structure & stamina of the Govt. [were] as little touched as possible."[132] He also "limited" his proposed amendments "to points which are important in the eyes of many and can be objectionable in those of none."[133] Thus, Madison tried to avoid controversial political issues affecting the structure of the government and concentrated on [Page 221] alterations that would preserve individual liberty. He thought that "nothing of a controvertible nature ought to he hazarded" because that might defeat the amendments and lead to renewed support for a second convention.[134] He told Edmund Randolph that he had avoided anything of a "controvertible nature" because of the "caprice & discord of opinions" in the House and Senate, which had to approve the amendments by a two-thirds vote, and in the state legislatures, three-fourths of which had to approve the amendments.[135] The amendments had a "twofold object of removing the fears of the discontented and of avoiding all such alterations as would either displease the adverse side, or endanger the success of the measure."[136]
Finally, we must remember that those who created the United States understood the nature of a revolution¾they had participated in one. In the Declaration of Independence they certainly asserted the right "to alter or to abolish" any government.[137] But, with a democratic republic created by the Constitution, the need for a violent revolution disappeared. Every two years there would be an opportunity to participate in an orderly process to replace the existing government. Some of the very early state constitutions, written during the Revolution itself, not surprisingly endorsed the right of revolution. However, the framers of 1787 did not endorse such a right. The Constitution does not have a suicide clause in it, and no one intended that it should have such a clause. Indeed, as John Marshall said even before the Convention finished its deliberations, "nothing but the adoption of some efficient plan from the Convention can prevent Anarchy first, & civil Convulsions afterwards."[138] After the Convention, Oliver Ellsworth, who would precede Marshall as Chief Justice, summed up this position: "Anarchy, or a want of such government as can protect the interests of the subjects against foreign [Page 222] and domestic injustice, is the worst of all conditions."[139] The goal was to prevent anarchy, violence, and rebellions. This prevention was accomplished by controlling the militias and the army and by retaining the right to limit weapons to those who formed "A well regulated Militia."
President Jackson made this point clear during the Nullification Crisis, when warning South Carolina to step back from the brink of secession and constitutional disaster. Responding to the Palmetto State's claim to a Revolutionary-era heritage, Jackson reminded the nullifiers that they were "free members of a flourishing and happy Union," and that "there [was] no settled design to oppress [them]."[140] Jackson's point, which Lincoln would reiterate to the South in 1861, was that the Constitution contemplated numerous ways for unhappy citizens, or even states, to protest federal legislation, but that these means did not include nullification, secession, or any other sort of rebellion.
The Constitution provided for a standing army and for the national government to arm and provide rules and regulations for state militias, which could be federalized when necessary. The Second Amendment allows for these state militias, which were "well regulated" under statutes passed by Congress, but the Amendment was clearly not designed to insure some sort of permanent revolutionary potential. Indeed, allowing for armed, unregulated citizens, who could threaten the public order and the national state, was unnecessary, unwise, and utterly in conflict with the "more perfect Union" the framers had created in Philadelphia. The "father of the Constitution," as Madison is often called, did not draft the Bill of Rights to undo his hard work at Philadelphia.
VII. ANTIFEDERALIST FEARS OF FEDERAL MILITARY POWER
Antifederalists, of course, thought the Constitution created a government that was too strong. Hostile to a strong central govern-ment, they feared the concentration of power, including military power, in the hands of the new president and Congress. Among their many fears, they worried that the military clauses in the Constitution might [Page 223] threaten the states in one of two quite contradictory ways.
Some Antifederalists feared that the ability of the new government to nationalize the state militias was the first step towards a military dictatorship. As early as 1783, George Washington had argued for stronger national control over the militias. In his Sentiments on a Peace Establishment,[141] Washington argued for drawing a select group of men, either as volunteers or draftees, from the state militias to serve in a national army.[142] As many scholars have noted, and as his own letters show, Washington had little use for the militias and would probably have happily seen them wither away while a trained, professional army maintained the defense of the nation.[143] Henry Knox, the secretary of war under the Articles of Confederation, proposed a less drastic form of nationalized training for the state militias and their removal from the states, when necessary, for no more than a year at a time.[144] However, such proposed reforms were fruitless, because the states rejected them.[145] Virginia tried to institute Washington's modest proposal that militia officers be chosen on the basis of ability, rather than social class and connections, but that reform fell flat on its face.[146]
The Constitution offered a remedy for these proposals by allowing for the nationalization of militia training and rules and by allowing the federalization of the militias under the president's control when necessary "to execute the Laws of the Union, suppress Insurrections and repel Invasions."[147] But such powers truly frightened the Antifederalists.
"Philadelphiensis" feared that the "president general" would be able to "order . . . the militia to exercise, and to march when and where he pleases."[148] In Maryland, an Antifederalist writing as "A Farmer and Planter," worried that with such a provision, the national government would levy oppressive taxes and that when people [Page 224] refused to pay them, the
great Lords and Masters . . . [would] send the militia of Pennsylvania, Boston, or any other state or place, to cut [their] throats, ravage and destroy [their] plantations, drive away [their] cattle and horses, abuse [their] wives, kill [their] infants, . . . ravish [their] daughters, and live in free quarters, until [they] get into a good humour, and pay all that they may think proper to ask of [the people], and [they] become good and faithful servants and slaves.[149]
The new government would, in effect, be able to federalize the militia of one state and use it against another.[150] The national government might also be able to use a local militia, under federal officers, to attack their neighbors. This ability, the opponents of the Constitution feared, would be the first step to tyranny.
The next step would be to actually take over the state militias, ordering them here and there to suppress liberty. Mercy Otis Warren, writing as "A Columbian Patriot," echoed this fear, complaining that under the Constitution "the militia of the country, the bulwark of defence, and the security of national liberty [would] no longer [be] under the controul of civil authority" but instead would be under the control of the president and the Senate.[151] Warren, carried away by her own rhetoric, referred to the president and Senate as "the Monarch" and "the aristocracy."[152]
While some Antifederalists feared the federalization of the militia, others feared the national government would simply destroy the militia. John DeWitt, writing in Massachusetts, complained that the organizers of the new government "[did] not mean to depend upon the citizens of the States alone to enforce their powers."[153] DeWitt argued that the only protection of a free state against tyranny was "a well regulated militia, composed of the yeomanry of the country" which had always "been considered as the bulwark of a free [Page 225] people."[154] He worried that the national government would "neglect to arm, organize and discipline the men" in the state militias,[155] thus making them weak and ineffective. Then a standing army could easily defeat the state militias and take over the nation. Similarly, Brutus, writing in New York, predicted that men would be "impressed from the militia" and forced into the national army.[156]
Other Antifederalists tied the taxing power to the creation of a national army. Brutus devoted an entire essay to the combined power of the United States "to borrow money . . . and to raise and support armies."[157] Indeed, a common theme among many Antifederalists was the fear of national taxes that would be collected by military force. One way of accomplishing this end was to cripple the military and thus prevent the national government from having the force to suppress tax rebellions. The Antifederalists could not figure out whether this force would be the federalized militia, as "A Farmer and a Planter" feared, or a standing army that could easily defeat a demoralized and untrained state militia, as DeWitt feared. But, either way, the strong national government, with its strong military, was the enemy. The plans of Washington outlined in his Sentiments on a Peace Establishment,[158] or the less drastic suggestions of Secretary of War Knox, only confirmed the dangers imposed by the military clauses of the new constitution. By 1787-88 both men had become ardent Federalists, and everyone assumed that if the Constitution were ratified, Washington would be president. The Antifederalists had strong reasons to fear that the new government might indeed destroy the state militias.
Thus, the opponents of the Constitution proposed amendments to limit the national government, including many changes in the military structure. As we know, these proposals failed to gain any substantial support in Congress.
VIII. THE DEBATE IN CONGRESS AND THE LANGUAGE OF THE AMENDMENT
There is frustratingly little of the Congressional debates over the [Page 226] Bill of Rights available to modern scholars. The Senate for this period kept no records of its debates, but only records of bills, motions, and votes. The House spent little time on the drafts that became the Second Amendment. The debate began with Madison's first draft of the proposed amendment, which stated that, "A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall b
"Let me issue and control a nation's money and I care not who writes the laws. - Mayer Rothschild
"Civil disobedience is not our problem. Our problem is civil obedience! People are obedient in the face of poverty, starvation, stupidity, war, and cruelty. Our problem is that grand thieves are running the country. That's our problem!" - Howard Zinn
"If there is no struggle there is no progress. Power concedes nothing without a demand. It never did and never will" - Frederick Douglass
"Civil disobedience is not our problem. Our problem is civil obedience! People are obedient in the face of poverty, starvation, stupidity, war, and cruelty. Our problem is that grand thieves are running the country. That's our problem!" - Howard Zinn
"If there is no struggle there is no progress. Power concedes nothing without a demand. It never did and never will" - Frederick Douglass