The Second Amendment Read online

  First, Henry pressed the legislature to pass a law requiring candidates for the House to live in the district for twelve months prior to the election. This flatly violated the Constitution, only three months old. It meant Madison could not search for a friendly electorate. Then Henry’s allies appointed Madison to serve in the lame-duck Confederation Congress, soon to expire but still meeting days away by coach in New York City. “Henry did not arrange Madison’s reelection to Congress because of his admiration for his legislative skills,” historian Richard Labunski noted dryly.

  Being stuck in Manhattan was the least of Madison’s troubles. Virginia’s new Fifth District had been carefully drawn to exclude pro-Constitution voters. It would be two decades before the term “gerrymandering” was coined, when Elbridge Gerry drew a congressional district so misshapen it was said to resemble a salamander. But that is what Patrick Henry did to James Madison: gerrymandered before Gerry. Madison found himself running in a hostile district with few friendly voters other than his hometown of Orange. The Virginian made it as far as Philadelphia, where he stayed to recuperate from hemorrhoids. Now he received urgent pleas from friends: if he wanted to win, he had better come home, fast.

  In December 1788 Madison dashed back to Virginia for a compressed six weeks of fierce campaigning. He faced James Monroe, an old friend and business colleague who was skeptical of the Constitution and now supported a bill of rights. (Principle aside, Monroe nursed a grudge: he believed Madison had blocked him from serving as a delegate to the Constitutional Convention.) On campaign platforms in the district, the two posed a sharp contrast. Madison was bookish, diffident, and physically slight. Monroe was gregarious, athletic, a charismatic war hero who carried a British musket ball in his lung. He had little recorded evidence of intellectual attainment. The farmers of the Fifth District assuredly would rather “drink a cider” with Monroe.

  Madison found himself thrown on the defensive. Monroe’s supporters charged that Madison was “dogmatically attached to the Constitution in every clause, syllable and letter.”

  The charge, strictly speaking, was not entirely untrue. Madison’s notes show him remaining silent when fellow Virginian George Mason demanded a bill of rights at the Constitutional Convention. He opposed amendments in the Confederation Congress, too. Patrick Henry bitterly suspected Madison had stealthily supported amendments at the state ratifying convention, but the records show little. Privately, Madison thrashed out the issue with Thomas Jefferson. Madison explained he would be for a bill of rights so long as it did not accidentally imply greater power for Congress than intended. “At the same time I have never thought the omission a material defect,” he confided, “nor been anxious to supply it by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I supposed it might be of use, and if properly executed could not be of disservice.” Bills of rights, he believed, did little to stop the tendency of legislative majorities to abuse rights. Madison wrestled with his position. In another letter he told Jefferson that he supported a bill of rights, so long as it did not change the balance of power between the states and the federal government. A few paragraphs later, he returned to the topic, now insisting that he was all for a bill of rights in part because it would “give to the Government its due popularity and stability.”

  Finally Madison decided he had no choice: he needed to declare his support for amendments to change the Constitution he had just spent so much time crafting, and for which he had argued so effectively in public. The simple reason: an appeal to swing voters. White Southern Baptists became a reliable conservative voting bloc in later centuries. In 1789, they were the freethinking unaligned vote. The governing Episcopal Church long had oppressed the Baptists. In years past Madison had stood up for the Baptists. Now they wavered; Monroe, after all, supported a constitutional amendment to guarantee religious freedom. Madison found himself one of the first American politicians to pirouette, in the course of a campaign, from a deeply held view to its opposite—all the while insisting (and trying to convince himself) that he had not changed his view at all. The Bill of Rights was born of a pander to a noisy interest group in a single congressional district.

  Madison executed this pivot with deft “message discipline.” In 1789, political figures communicated with the public in “private” letters published in newspapers and circulated widely. Madison wrote a missive to a local Baptist clergyman explaining that he had not really changed his position. True, he noted, “I opposed all previous alterations as calculated to throw the States into dangerous contentions.” That was then. “Circumstances are now changed: The Constitution is established,” he explained. Now, he declared, “It is my sincere opinion that the Constitution ought to be revised, and that the first Congress . . . ought to prepare and recommend to the states for ratification the most satisfactory provisions for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants & c.” Done right, these might “serve the double purpose of satisfying the mind of well-meaning opponents, and of providing additional guards in favour of liberty.” One chronicler of the First Amendment called this “read-my-lips pledge . . . one of the most important campaign promises in American history.”

  Madison campaigned furiously through unusually harsh weather. One evening he suffered from frostbite on his nose. His switch of position proved just enough, and he won by 336 votes.

  MADISON PROPOSES A BILL OF RIGHTS; CONGRESS YAWNS

  In spring 1789 Madison was now thirty-eight years old, but already had performed enough public roles to last a lifetime: architect of the Constitution and pseudonymous articulator of its purposes, organizer of the campaign to ram it to passage, survivor of a harrowing campaign for Congress. He wrote George Washington’s Inaugural Address, the House’s reply to Washington, and Washington’s reply to the House. Now he served in effect as majority leader of the new House of Representatives. At a time when William Pitt the Younger guided the fortunes of George III, Madison was George Washington’s de facto prime minister. In the primordial soup of American politics, before party blocs had hardened, Madison flitted to and fro, assembling majorities and steering legislation to passage.

  To his great frustration, he could not seem to get anyone to pay attention to the need for a bill of rights. He promised his constituents; the others had not. Other matters loomed larger, such as establishing the judiciary, forming the navy, and raising revenue. To be sure, Madison still thought revisions unnecessary. He worried to a friend that it was time to finish “the nauseous project of writing amendments.” The Constitution had been in effect for only months—why not let it work and see what the problems were? But he had a keen political sense. He feared, above all, a call for a second convention—or, just as bad, an amendment that could prevent the federal government from levying taxes and funding itself. A bill of rights could blunt such a move.

  Remarkably, both proponents and foes saw amendments as a tactic—a political feint.

  Madison faced two distinct voting blocs: Federalists scorned amendments. They had just run in support of the Constitution, and had won a landslide. When newspapers around the country printed Madison’s proposal, previously supportive editors turned on him. One writer sneered anonymously, “if we must have amendments, I pray for merely amusing amendments, a little frothy garnish.”

  Anti-Federalists were not happy, either. They viewed amendments as a distraction from the thorough overhaul they wanted: they insisted on a new convention. A political cliché of the time drew from maritime lore (the way a pundit today might glibly talk of “throwing someone under the bus”). Foes and allies likened the amendments to a trick used by sailors, who would throw a tub into the water to distract dangerous whales. “Like a barrel thrown to the whale, the people were to be amused with fancied amendments, until the harpoon of power, should secure its prey and render resistance ineffectual,” one wrote. Amend
ments would just confuse citizens who should be demanding structural change to restore power to the states. Writers and speakers repeated this metaphor, each relishing its use as if thinking of it for the first time. It became an easy way to get under Madison’s skin.

  Weeks dragged by. Congressmen still straggled into town, and there was no quorum until April. George Washington took the oath late that month—well past the date set in the Constitution—and obliquely urged action on amendments in his first Inaugural Address.

  The week after Washington took the oath, Madison reminded his colleagues: it was time to act. Others felt less urgency. “The storm has abated, and calm succeeds,” New York’s John Vining would later counsel. The House postponed the discussion until three weeks later. The next day, May 5, Madison’s own state of Virginia formally submitted its call for a new convention, joining New York. That unnerved. Worse, the most vulnerable part of the Constitution remained Congress’s power to levy taxes. This would pose a lethal threat to the new government. On May 25, Madison tried again, only to see the matter postponed.

  On June 8, Madison rose to speak again. He faced a skeptical audience. “I hope the House will not spend much time on this subject, till the more pressing business is dispatched,” one lawmaker commented. Madison insisted that the debate take place in public, through the mechanism of the House acting as a committee of the whole to draft changes. Otherwise, drafting would take place in a committee session closed to the public. Others winced at the prospect of a lengthy open debate. “It strikes me that the great amendment which the Government wants,” retorted John Vining, “is expedition in the dispatch of business.” Congress had “done nothing to tranquilize that agitation” stirred by the Constitution, yet the public had calmed down and moved on. Why bother with amendments?

  Having endured his colleagues’ hazing, Madison introduced his proposed amendments. His lengthy, clotted speech is the closest we have to a “manager’s statement” on the Bill of Rights. At the time, the House of Representatives was the only part of the government directly elected by the people, and the only one that held its deliberations in public. It was the only show in town. Its galleries were often crowded with onlookers, and we can assume they were there this day. They would have had to lean in to hear Madison’s talk.

  If the Congress kept postponing discussion, he cajoled, “it may occasion suspicions, which, though not well founded, may tend to inflame or prejudice the public mind against our decisions,” he explained. “They may think we are not sincere in our desire to incorporate such amendments in the constitution as will secure those rights, which they consider as not sufficiently guarded.” Madison’s motive—at least as expressed to a House dominated by fellow Federalists—was frankly therapeutic: “to quiet that anxiety which prevails in the public mind.”

  Two years before, ever the student, he had gathered the world’s constitutions and classics of philosophy to prepare the Virginia Plan. Now he unreeled his list of amendments from the overlapping, voluminous compendium of proposals forwarded by state conventions.

  Faced with strenuous calls to alter the structure of the new government, he reached for amendments that did not change the Constitution in its essentials. He ignored the call for a two thirds vote for a standing army, proposed by Virginia, or to declare war, urged by New York. “There have been objections of various kinds made against the constitution,” he explained. Some were structural, such as concerns about the Senate’s power to advise and consent to the president, or because it gives the federal government too much power. “I know some respectable characters who opposed this government on these grounds; but I believe that the great mass of the people who opposed it, disliked it because it did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power.”

  Madison proposed twenty changes, hoping they would be interwoven in the existing Constitution. Americans are accustomed to thinking of the Bill of Rights as a Decalogue, akin to the commandments carried by Moses from Sinai. We would find his original list jumbled, lacking totemic power.

  Madison first included a declaration that power remained with the people. His second amendment discussed the proper size of congressional districts. The third would block the effective date of congressional pay raises until after the next election. Then, a string of changes to be inserted into the section on Congress’s power. It started with protection for speech and religion. Then, two amendments dealing with military issues. The first read:

  The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

  Why did Madison phrase it this way? We don’t know. He never explained the amendment, either in the written record of his floor speech or in any other forum. His notes for his talk indicated amendments referred “first to private rights,” though it is unclear whether that described all the amendments or just some. The notes refer, too, to the English Bill of Rights and its restrictions on arms bearing to Protestants. Plainly he had cut, pasted, and slightly rewritten the Virginia recommendation. The focus on the militia, and the reference to conscientious objectors, suggests a military purpose. Most likely he wanted to reassure citizens who were anxious about armies and enamored of militias, but to do so while making the slightest alteration to the Constitution itself. The other proposed amendments were far more precise.

  In any case, he quickly moved on to another military amendment, one that prohibited troops from being quartered in people’s homes. Madison also passionately urged an amendment declaring: “No state”—not just Congress—“shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” Madison called this “the most valuable amendment in the whole list.”

  As Madison dutifully trudged through his compendium, we mourn the absence of C-SPAN. Still, the sense of eye rolling comes through the transcript. Some colleagues, at least, found the whole exercise droll. Fisher Ames, a Federalist congressman from Massachusetts, acidly reported: “Mr. Madison has introduced his long expected Amendments. They are the fruit of much labour and research. He has hunted up all the grievances and complaints of newspapers—all the articles of Conventions—and the small talk of their debates.” Ames detailed the myriad changes Madison proposed, from trial by jury to freedom of speech. “There is too much of it— O. I had forgot, the right of the people to bear Arms.”

  Ames paused and added, “Risum teneatis amici.” Translated from the Latin, “Stifle laughter, friends.”

  Newspapers reported on Madison’s speech. The arms amendment drew little notice. The Federalist writer Tench Coxe summarized the array of amendments in one account. He devoted a few sentences to explain that the arms amendment sought to deflect oppression. “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.” He sent the article to Madison, who issued a polite but noncommittal reply.

  In the end, the House decided to send Madison’s proposed amendments to a committee, which met in secret to redraft them. Each state sent one representative. Madison spoke for Virginia. Lawmakers drafted amid frantic effort to set up the new government, squeezing in sessions at night or between other responsibilities. Finally, on August 17, the panel brought the amendments before the full House. It was a streamlined list. The panel subtly altered the militia amendment (now fourth on the list). It moved the explanatory clause to the beginning. It made clear the protection afforded was not to the “country” but the states. It deleted the provision that the militia
be “well armed.” And it inserted a call for the citizen soldiers to be drawn from the full populace:

  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 one religiously scrupulous of bearing arms, shall be compelled to render military service in person.

  Once again, Elbridge Gerry was quick to his feet. “This declaration of rights, I take it,” he began, “is intended to secure the people against the mal-administration of the government. . . .”

  Now I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms.

  What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now it must be evident, that under this provision, together with their other powers, congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever government means to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.

  Gerry had found a new topic about which to fume. The government, he warned, could simply declare classes of people to be conscientious objectors, and thus prohibit them from bearing arms. Gerry likely was thinking about what happened in Britain a century earlier, when the Catholic King James II had declared Protestants could not join the militia. At the very least, Gerry asked, the language should be confined to people who were actually members of a “religious sect, scrupulous of bearing arms.” Madison and Gerry and the other congressmen knew that such a sect dominated one state: Pennsylvania’s Quakers were so influential the state never formally had a militia until 1776. (Quakers were pacifists who would not engage in any warlike actions. They could shoot guns to hunt for food, and used them to kill vermin, but would not hunt for sport.)