The Second Amendment Page 4
On August 23, tempers frayed as the delegates engaged in their most direct debate over the role of the military and an armed citizenry. The drafting committee now had proposed to give Congress power to “make laws for organizing, arming & disciplining the militia.” To let the national government set rules and organize the militia, the notes show Gerry insisting, “is making the states drill-seargents. He had as lief let the Citizens of Massachusetts be disarmed, as to take the command from the States, and subject them to the General Legislature. It would be regarded a system of Despotism.” Madison looked up from his note-taking to reply: he “observed that ‘arming’ . . . did not extend to furnishing arms. . . . The primary object is to secure an effectual discipline of the militia.” Already, states “neglect their militia. . . . The Discipline of the Militia is evidently a National concern, and ought to be provided for in the National Constitution.” Madison proposed that the national government be able to appoint senior militia officers. This, to Gerry, posed an ultimate threat to state sovereignty. “Let us at once destroy the State Govts,” he declared with heavy sarcasm, “have an Executive for life or hereditary, and a proper Senate, and then there would be some consistency in giving [this power] to the Genl Govt.”
The debates showed how far the war and especially its aftermath had scrambled traditional thinking. Previously all republicans assumed that militias, locally controlled, would be closer to the people, less prone to corruption and abuse. By 1787, though, it became clear that local militias might side with local troublemakers, as they had during Shays’ Rebellion. Even the militias, scholar David Williams notes, might become seditious. The shift to a national army, with federal control over the militia, was both logical and radical. To the men of the convention, an effective government required it, however humbly they tipped their tricorn hats to the public’s pride in its hometown fighting forces.
As the deliberations drew to a close, opponents realized with mounting alarm that their chances to make substantial changes were dwindling. George Mason had declared earlier in the summer he would “sooner chop off his right hand than put it to the Constitution as it now stands.” He scribbled a list of objections on the back of a draft that had been produced by the Committee on Style, seeking to persuade the Maryland delegation to oppose the plan: where was a bill of rights? In the last week before the final vote, Mason rose to complain to the full convention. A bill of rights “would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours,” he insisted. Gerry backed him.
The convention rejected the idea of a bill of rights. Every state voted no. The architects of the new government thought it unnecessary. How could they have made such a misjudgment? In part, the delegates shared Madison’s view that such declarations were mere “parchment barriers,” meaningless verbiage that would prove much less important than the goodwill of legislative majorities. Madison’s study of successful governments persuaded him that institutional arrangements, checks and balances, would far better protect minority rights. Others embraced a different argument, in some ways contradictory. James Wilson of Pennsylvania offered the most influential explanation a few weeks after the convention ended. No bill of rights was needed, Wilson explained, because Congress had no power to take away those rights. All power not stipulated as given to the national government remained with the states. Consider “the liberty of the press, which has been a copious source of declamation and opposition—what control can proceed from the federal government to shackle or destroy that sacred palladium of national freedom?”
Regardless, it was to prove a costly political mistake, and nearly undid the Constitution. It is worth noting there is no evidence—from James Madison’s notes or those of any other participant—that the delegates in the Constitutional Convention had the slightest inkling that private gun ownership was viewed as being at risk and required inclusion in a bill of rights. It simply did not come up.
Delegates had kept discord from spilling out into public view by strict adherence to the rule of secrecy. Now those debates erupted in public view.
TWO
Ratification
The publication of the Constitution was one of the most spectacular moments in American history. George Washington, Benjamin Franklin, and dozens of the leading men of the thirteen states had vanished for weeks, with rumors and speculation swirling. In Philadelphia, the Packet reported breathlessly in early September, “We hear that the Convention propose to adjourn next week. . . . The year 1776 is celebrated for a revolution in favor of Liberty. The year 1787 it is expected will be celebrated with equal joy, for a revolution in favor of government.” Many Americans had no idea a new constitution was coming.
The document—printed in full in dozens of newspapers within days—burst far beyond the expected. And the young men of the convention realized they had limited time to push through the new charter. The audacity of their project was heightened by the way they tried to ram the product toward ratification. They knew the Convention had greatly exceeded its mandate. And they wanted to move quickly. They chose a distinctly democratic method of approval to win legitimacy: the new Constitution should be ratified by the people—by special conventions elected for that sole purpose—rather than the state legislatures. Instead of allowing any state to veto, as under the Articles of Confederation, the Constitution would take effect if nine of thirteen states ratified it. Existing state legislatures would have to authorize the calling of conventions. The Confederation Congress, still meeting in New York, played a muddled role. Rather sourly its members “Resolved unanimously” to send the document to the states, without comment. Historian Pauline Maier notes that this savvy wordsmanship gave the public a mistaken impression of unanimous support. The people of the states were given a stark choice: all or nothing, up or down.
In the fight over ratification Americans engaged in one of history’s great public debates. A frenzy of politicking broke out, as people ran to be elected delegates, petitioned the various bodies, churned out articles and pamphlets. “Brutus,” “The Federal Farmer,” “Catiline,” “Publius,” and other pseudonymous authors contended at an exceptionally high level of erudition. Charges and countercharges, arguments and responses, flew so rapidly that it can be hard to discern patterns. “In reading through this immensity of writings, ranging from lampooning verses and jingle-jangle squibs to scholarly treatises and brilliant polemical exchanges,” historian Bernard Bailyn observed, “one easily loses track of any patterns or themes.”
We forget that the classic of political theory, The Federalist, was produced in a fury by partisan writers—arguments that today would find a home on an op-ed page or perhaps an eloquent blog. Often Publius focused on a seemingly obscure topic because an unseen debating counterpart had brought it up. Sometimes, we have to wonder if the authors believed all their own arguments. Through it all, Americans realized they were embarking on something different. “This is a new event in the history of mankind,” the governor of Connecticut declared at the time. “Heretofore, most governments have been formed by tyrants and imposed on mankind by force. Never before did a people, in a time of peace and tranquility, meet together by their representatives and, with calm deliberation, frame for themselves a system of government.”
With support from Franklin, Washington, and the able pens of Hamilton and Madison, the Federalists were formidable. Newspapers also overwhelmingly backed ratification. Yet opponents of the new government rallied. They warned that the new system tilted far too dramatically to the national government. Their objections were varied, sometimes contradictory, and often reactive. Many arguments bordered on shrill. Smelling conspiracy, they saw the new document as allowing the return of monarchy or worse. In an early example of deft spin, those who backed the Constitution—which yanked power away from the states—dubbed themselves the “Federalists.” Their opponents, they insisted, were “Anti-Federalists,” shorthand rejected by the critics themselves. In the welter of cha
rges and counters, with articles published and meetings held, there were several broad arguments. Most frequently, the federal government would have the power to levy taxes. The Constitution trampled the role of the states. The means of representation was set wrongly: senators would become aristocrats, while House districts were too large to be truly democratic. Wasn’t that what the Revolution was fought against? States would be swallowed up by the new government, in contrast to the Articles of Confederation, which had restricted the national government only to specific delegated powers. When individual rights were weighed, the Constitution offered no protection for free speech or religious liberty.
Amid this contention, one loud argument held that this new, over-powerful central government could wield a standing army and crush the citizen militias that were so central to liberty. Luther Martin, the attorney general of Maryland and a convention delegate, sketched a typically dystopian vista in a speech to his legislature that fall. Congress could “march the whole militia of Maryland to the remotest part of the union, and keep them in service as long as they think proper,” with no permission from the state. Its citizens could be “subjected to military law, and tied up and whipped at the halbert like the meanest of slaves.” A pamphleteer named “Philadelphiensis” demanded: “Who can deny but the president general will be a king to all intents and purposes, and one of the most dangerous kinds too; a king elected to command a standing army?” In Boston a pamphleteer echoed Martin’s worries. “It is asserted by the most respectable writers upon government, that a well-regulated militia, composed of the yeomanry of the country, have ever been considered as the bulwark of a free people. Tyrants have never placed any confidence on a militia composed of freemen.”
It quickly became plain that the convention had made a significant political error when it failed to include a bill of rights. Seven state constitutions already had such declarations, though most were little more than vague statements of basic freedoms that the government ought to respect. Most protected the militia. Four states out of thirteen protected the right to bear arms; only one (Pennsylvania) for personal self-defense.
This criticism, these debates, focused on the militia—if they touched on military matters at all. We know that the militia drew on ordinary citizens, who were expected to bring military weapons from home. What about the broader role of guns—was that a principal worry for those who criticized the Constitution?
Guns abounded. The western frontier, especially, experienced a nonstop series of raids and reprisals with Indian tribes and their French allies. There were few restrictions on hunting game. In towns and cities, no police forces had been established to protect public order. And, of course, there was the duty to serve in the militia, however intermittently it was followed.
Yet at the same time, gun regulations were common. The historian Saul Cornell has traced some of the most significant: Boston made it illegal to keep a loaded gun in a home. Laws governed the location of guns and gunpowder storage. New York, Boston, and all cities in Pennsylvania prohibited the firing of guns within city limits. States imposed curbs on gun ownership. People deemed dangerous were barred from owning weapons. Pennsylvania disarmed Tory sympathizers. Residents had to swear a loyalty oath. Other states imposed restrictions less defensible to modern eyes. Before the Revolution, Maryland had prevented Catholics from owning guns. Most states banned African Americans, even freemen, from joining the militia; some from holding weapons at all. A variety of gun rules pertained to militia service. For example, Rhode Island conducted a house-to-house census—an early American form of a gun registry. In the middle of the ratification fight, in fact, Pennsylvania recalled all the militia guns in the state to be inspected and cleaned. (The state’s citizen soldiers had allowed the weaponry to rust and decay.)
In general, gun use was governed by common law, handed down from England and enforced by judicial decisions. Everyone had the right to self-defense. A citizen threatened by another had a right to protect himself. The British legal scholar William Blackstone was highly influential among colonists. In studying the English common law, he identified “the natural right of resistance and self-preservation,” which was effectuated by the right “of having arms for their defence, suitable to their condition and degree, and such as are allowed by law.” But judges weighed this right against other long-standing rules and practices. For example, the misdemeanor of affrighting, dating from medieval times, prohibited carrying a weapon in a way that menaced others. (That covered clubs and maces as well as guns.)
To be sure, Americans expected to be able to own a gun, just as they understood they had a right to own property—another cherished freedom subject to regulation and the states’ police power. They just did not expect the Constitution to address an issue that clearly had no relevance to federal authority. The Anti-Federalist Brutus, for example, explained, “It ought to be left to the state governments to provide for the protection and defence of the citizen against the hand of private violence, and the wrongs done or attempted by individuals to each other.” The Federalist Tench Coxe reassured, “The states will regulate and administer the criminal law, exclusively of Congress.” The police power of the states would not be diminished under the new Constitution, he explained, and the individual states would continue to legislate on all matters “such as unlicensed public houses, nuisances, and many other things of the like nature.”
To modern readers, one area of confusion comes from the fact that weapons were far less powerful than today. Nelson Lund, opposed to gun control, notes, “Technological advances have created a sharp distinction between military weapons and the less lethal weaponry customarily kept by civilians for self-defense. This change, along with the firmly established practice of maintaining large peacetime standing armies, has created the need for legal distinctions that the Framers had no cause to consider. For them, there was no difference between military and civilian small arms.” The Framers focused on the military purpose of bearing arms, but the weapons in question were muskets, not bazookas (or drones).
In any case, the debates over rights focused far more prominently on protections for speech, or the right to trial. Perhaps if the Constitution had included such guarantees in the first place, public anxiety would have found a different target. As it was, the new document provoked almost existential panic among many foes.
FEDERALISTS AND ANTI-FEDERALISTS
The Federalists’ high-handed drive to rush the Constitution forward did little to assuage concerns.
The first test came in Pennsylvania. The Constitutional Convention had been meeting on the ground floor of the State House. With the document now publicly revealed, delegates dashed up the broad steps to the second floor, where the state legislature was in session, to break the big news. The next day supporters read the document aloud, and demanded that lawmakers quickly call a state ratification convention. Benjamin Franklin implied strongly that if Pennsylvania acted fast, it would be chosen the new capital. Philadelphia area politicians who backed the Constitution, many Quaker, dominated the legislature. Opponents drew support from the western part of the state. These legislators were more rural, less commercially connected, less educated. On the farthest frontier, they waged constant war with neighboring Indian tribes. In the decade before the Revolution, they had complained bitterly that the Quaker-heavy Assembly would not give them guns or organize a militia to fight Indians. The two factions long struggled for control. (Some patterns start early: Barack Obama was not the first urban politician to complain that rural Pennsylvanians “cling to guns or religion.”)
Opponents tried to stall the bid for quick action by refusing to return after lunch, thus denying a quorum for a vote. After several days hunting legislators in boardinghouses, sergeants at arms forcibly dragged two to their desks. An ominous crowd blocked their escape. Quorum achieved, the Pennsylvania legislature sent the U.S. Constitution to a convention for ratification.
The same fights played out in the state’s ratifying convention. Fe
deralists, backed by most newspapers and commercial interests, rammed the document past the objections of backcountry delegates. On the last day of the convention, opponents proposed that the decision be postponed. They lost. Just before a final vote, Anti-Federalists presented a lengthy list of proposed revisions. The most significant curbed Congress’s taxing power. Others guaranteed trial by jury, required congressional elections every year, and constrained the power of the federal courts. One proclaimed, “the people have a right to bear arms for the defence 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.” Another amendment guaranteed the right to hunt. (This may have been a response to the actions of earlier British kings, who restricted game licenses as a way of disarming the militias.)