The Second Amendment Read online

  Pennsylvania delegates never debated these changes. The Federalists refused to allow it. Instead they voted down the amendments as a block, and then voted in identical numbers to ratify the Constitution. They even refused to print the proposals in the official journal. Pennsylvania was convulsed as anti-Constitution gangs attacked supporters of ratification. The dissidents printed their own unofficial minority report (including the rather incoherent set of amendments), which was circulated widely within the colonies. Federalists mocked the pamphlet. Noah Webster—decades before he compiled his landmark of American usage—suggested an additional provision assuring “that Congress shall never restrain any inhabitant of America from eating and drinking, at seasonable times, or prevent his lying on his left side, in a long winter’s night, or even on his back, when he is fatigued by lying on his right.” He mischievously suggested that citizens be required to hunt, too.

  By mid-January 1788, Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut had ratified the charter with overwhelming support. Outside the conventions, debaters parried fiercely.

  Then Massachusetts took its turn. Anti-Federalists seemed to hold the majority of the state. Delegates voiced the same concerns as elsewhere: taxes, representation, juries. Delegates seemed poised to reject the whole document. Two canny politicians made a decisive stroke. We first met them hiding in the Middlesex County countryside twelve years before. John Hancock now served as governor of Massachusetts. His flamboyant self-satisfaction comes to us through his large and flowery signature. Hancock’s theatricality proved decisive in 1788. The governor had not yet declared his position on the Constitution, using illness as an excuse for silence. On January 30, servants carried Hancock into the meeting room from his sickbed, and before a riveted audience he announced his position. The old Patriot would support the Constitution, urging a “yea” vote. But he proposed that Massachusetts also vote to send a list of recommended amendments to serve as a bill of rights for Congress to enact in its first term.

  At first, Pauline Maier recounts, Hancock’s triangulation seemed to recoil on the Constitution’s proponents. If the document needed no change, why support amendments? But the topics seemed carefully chosen to avoid structural alterations. Then the Bay State’s other silent Revolutionary Era legend stepped in. Samuel Adams had refused to attend the Constitutional Convention in Philadelphia, fearing it would centralize governmental power. Now he declared he would support the Constitution after all, while recommending amendments. In early February, Massachusetts narrowly ratified the Constitution (187 to 168). The delegates recommended that Congress enact nine amendments ranging from a bar on direct taxation to a requirement for jury trials in civil cases. Adams proposed additional changes, but the delegates rejected them, including one to prevent the disarming of “peacable citizens.” In the end no recommended amendment mentioned the militia or the right to bear arms. These were the first official, proposed changes: the first with the color of authority.

  Now a template for victory in large states seemed set. Backers would defend the Constitution and all its provisions. At the last minute, grudgingly, they would agree to append a bill of rights, which would pronounce (with varying degrees of vagueness) assurances that the new government would not, after all, impose tyranny. A cascade of small states ratified. First, Maryland unanimously endorsed with no amendments. Then South Carolina recommended minor wording changes to the Constitution. It shrank from embracing a bill of rights, though, perhaps because these often began with a proclamation that “all men are created equal.” In June 1788, New Hampshire ratified, essentially adopting the Bay State’s list of proposed changes. It urged that a standing army require a vote of three quarters of each house of Congress, and added: “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.”

  Nine states in: the Constitution, formally, had taken effect. But two major states had not yet ratified: Virginia, the home of the presumptive first president, and New York, then the capital. Anti-Federalists seemed to hold the majority in each. Debate intensified even as momentum tipped toward ratification.

  First up was Virginia, the largest state. Patrick Henry no longer served as governor, yet he dominated its politics. Henry first gained fame in 1776 demanding “give me liberty, or give me death,” in support of raising a militia to fight the British. Now he trained his eloquence on a constitution he saw as tyrannical. He was willing to see Virginia break away, and even sent feelers to other states and to France. Never far beneath the surface surged issues of slavery and fear of revolt. The ratification convention is rich with that distinct Virginia blend of high-flown tributes to liberty, honeyed testimonies of personal distaste for slavery, and venomous appeals to race prejudice. The new constitution would give Congress too much authority, Henry warned. “They’ll take your niggers from you,” he said to laughter.

  Henry and George Mason picked at the document, line by line. Madison wearily responded for days. Principal objections, as elsewhere, came on the issues of taxes and religious freedom. But military power rattled, too, touching underlying fears of civil unrest.

  George Mason focused with vehemence on the idea that Congress could call up the militia. During the war they kept order and forestalled any hint of slave revolt. The new Constitution gave Virginia power to appoint officers. But Congress could decide who would serve, how they would be disciplined, and whether they were properly armed. Congress could even leave Virginians defenseless by calling its men into service and marching them across the country. That should be barred without the Virginia legislature’s consent, he insisted. In reply, a Federalist leader again obliquely raised the threat of slave uprising. It was the Southern states “from their situation” who were in fact most likely to need help from elsewhere.

  Attacks grew ever more personal. At one point Henry and the current governor, George Randolph, reportedly prepared for a duel.

  More than most, Mason personified the genteel hypocrisy of Virginia’s gentry. He earnestly opposed slavery, but owned one hundred slaves. He had written the ringing language declaring all men created equal. He tiptoed to the edge of the issue. “The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless by disarming them,” he worried. “Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them.” Madison responded—inaccurately—that the power to arm the militias was concurrent, that both Congress and the state could do so. The new Constitution would make sure the militia was properly armed. Madison apparently made that argument up on the fly.

  Henry pounced. “The militia, Sir, is our ultimate safety. We can have no security without it,” Henry proclaimed. The state should have responsibility to arm it. Otherwise it could lead to the boondoggle of both levels of government paying for arms, or neither.

  So that our militia shall have two sets of arms, double sets of regimentals, &c. and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms, &c? Every one who is able may have a gun. But have we not learned by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavoured to have the militia completely armed, it is still far from being the case? When this power is given up to Congress without limitation or bounds, how will your militia be armed?

  Henry’s plaint would be quoted wildly out of context two centuries later. As the vote neared, Federalists gained momentum. Like a ham actor turning up the volume as he realizes he is losing his audience’s attention, an increasingly frenetic Henry broke even the South’s taboo. “Slavery is detested” elsewhere, he declared. The state’s black men could be called into federal military service, and then freed. Congress has “the power in clear, unequivocal terms, and will clearly and certainl
y exercise it.” Henry’s fevered speech revealed that the tide had run against the critics. By a vote of 57 to 47, the convention ratified the Constitution. It then appointed a committee to recommend amendments, as other states had done.

  Most of the proposed changes drew from Virginia’s Revolutionary Era constitution, adopted in 1776. That document had included pledges to support freedom of speech and religion, habeas corpus, and other rights. It also paid tribute to the militia. Now the ratification convention rewrote that provision slightly. Its proposed Seventeenth Amendment proclaimed:

  That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.

  A proposed Nineteenth Amendment also allowed “any person religiously scrupulous of bearing arms” to avoid military service “upon payment of an equivalent to employ another to bear arms in his stead.” Thus a right not to bear arms for Quakers and others was seen as an essential balance against the obligation to bear arms.

  Virginia’s recommended Bill of Rights would stand separate from the body of the Constitution, possibly at the beginning as in several states. The committee also proposed numerous tweaks and rewrites to the central document itself. Further addressing worries about the militia, it insisted that each state “shall have the power to provide for organizing, arming and disciplining its own Militia, whensoever Congress shall omit or neglect to provide for the same.”

  Madison served on the committee that drafted the proposed amendments. To him, one possible change stood out as a particularly dangerous threat. The Constitution gave Congress the power to levy taxes directly, without the consent of states. Only in this way could a national government hope to fund its activities. Virginia recommended an amendment that would prohibit this. Madison was aghast, he reported to Washington and Hamilton. They knew this was what later generations would call a “starve the beast” strategy. Without revenue, the government would grow so weak it could be (as we now say) drowned in the bathtub. As the focus over ratification and amendments rolled toward its conclusion, Madison grew ever more convinced this change would doom the new country’s chances. Throughout the rest of the fight over ratification and amendments, one of his chief goals was to avoid it. Other amendments paled in his eyes.

  Next came New York, still serving as the nation’s capital.

  If anywhere seemed like ripe territory for backers of the Constitution, it would be the shipping and commercial hub at the mouth of the Hudson. How could New York say no? Yet ratification proved surprisingly hard, again. Here, too, the urban versus rural, upstate versus downstate conflicts that linger two centuries later arose. Also, tariff revenues from New York City’s port had flowed to the state after the British evacuated. The state’s ambitious governor, George Clinton, was able to keep property taxes low, and had no interest in giving up the flow of funds to a new federal government. The convention convened at Poughkeepsie, a day’s ride north from the city.

  Polemicists debated in New York City with tabloid intensity. Madison had decided to stay in Manhattan to manage the pro-Constitution forces there. By the time the state convention prepared to meet, journalists and pamphleteers had published broadsides against and for ratification. Madison, together with Alexander Hamilton and John Jay, published The Federalist in the New York Independent Journal and two other papers. The topic of the new military system did not come up until the twenty-ninth article in the series. Hamilton took the first swing. It was only right, he asserted, that the new national government would take at least partial control of the militias. “If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security,” he wrote. Make the militias a success, he wrote, and that would do more “to render an army unnecessary . . . than a thousand prohibitions on paper.”

  The anonymous pundits of The Federalist were engaging in a day-by-day public argument. “The Letters of Brutus” parried with Publius in a rival newspaper. Brutus warned that citizens should fear the new military system. Two mighty nations, renowned for liberty, had seen a standing army “subvert the government”: Britain and Rome. And it almost happened here. George Washington had quashed the Newburgh mutiny. But the vigorous young soldiers had been ready for a coup d’état. The call to action “affected them like an electric shock.” Had their commander “been possessed of the spirit of a Julius Caesar or a Cromwell,” Brutus warned, the republic would have ended shortly after the war.

  Madison volleyed back a few days later. In Federalist 46, his frustration seems palpable. “Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say that the State governments with the people on their side would be able to repel the danger,” he insisted. If a standing army were formed, he wrote, it would not grow larger than 25,000 to 30,000 men. “To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.” State militias, well armed and trained, led by men democratically chosen, could fight off a standing army.

  Madison’s and Hamilton’s arguments proved increasingly effective. New York did not wish to be a lone holdout among big, commercially vital states. But its convention did not just ask for amendments. Instead, it demanded a Second Constitutional Convention. (Madison resisted, but Hamilton thought this a necessary concession.) After all, the new U.S. Constitution stipulated such a convention could be called to propose amendments. But to reconvene delegates so quickly would freeze the new government in its infancy. Madison now had to head off the most dangerous threat of all. Again, the Constitution was ratified, again with a request for amendments—and this time through a means that could prove fatal to the national authority.

  The Constitution approved, the new government began to take form. But the fight had been far closer than expected. North Carolina would soon reject the Constitution unless amended. Vermont and Rhode Island had not acted at all. All told, six of the ten states had recommended specific amendments. The states had proposed over one hundred distinct changes (and at least a hundred more that overlapped or mirrored them). They would limit a president to two terms, turn state courts into lower federal courts, bar marching the militia out of state, require a two thirds vote for commerce regulations, prevent any American from accepting a foreign title, create a presidential advisory committee, require printing of a congressional record, and more. If they were ever debated in Congress, one contemporary observer wrote, they would “immediately like Swift’s books, give battle to each other, and soon destroy themselves.” Of note, in a country founded on a tax revolt, much discussion focused on Congress’s new power to raise revenues.

  It was a momentous debate, a rare and consequential moment of government making. Thousands of speeches, dozens of pamphlets, hundreds of articles, thousands of words, debated the new document and its risks and advantages. Rarely mentioned was the idea that the new national government would threaten private gun ownership for personal protection.

  Thomas Jefferson, writing to Madison from Paris where he served as envoy to the Court of Louis XVI, opened a window on what the Founders thought was important in the Bill of Rights. He liked much of the Constitution, he told his protégé. “I will now add what I do not like. First the omission of a bill of rights providing c
learly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trial by jury in all matters of fact triable by the laws of the land and not by the law of Nations.” Even Jefferson, more enamored of individual rights than his peers, who had once proposed an individual right to bear arms in an earlier version of the Virginia state constitution, appeared unconcerned by its omission from the new document.

  With the Constitution ratified, debate subsided with surprising swiftness. Most opponents retreated from public life. Many others shrugged and ran for office, seeking power in the new arrangement. A bill of rights might easily have slipped off the agenda—but for the quirks of one congressional contest in the first election.

  THREE

  The Tub to the Whale

  James Madison was eager to take his place in the new government he helped shape. At a time when honor demanded that leaders act disinterested, he might expect that his national prominence would garner him a seat representing Virginia. How to act as Cincinnatus, summoned reluctantly to serve, if the people never call? As winter approached, cooped up in New York City, he realized that if he wanted to win a place in Congress, he would have to work for it—hard.

  At first, Madison yearned for a Senate seat, with its leisurely six-year term. But under the original Constitution, voters did not choose senators; states did. Patrick Henry still dominated Virginia, and still opposed the Constitution. George Washington wrote regretfully to Madison, “The edicts of Mr. Henry are enregistred with less opposition by the majority of [the legislature] than those of the Grand Monarch are in the parliaments of France.” Henry warned legislators that Madison’s election to the Senate would result in “rivulets of blood throughout the land.” Madison’s Senate bid fell short. Instead, he chose to run for the House of Representatives, the body closest to the people (and the only one directly elected by them). More shocks awaited.