With the Constitution ratified by the necessary states in 1788, it officially became the supreme law of the land in the states so ratifying. Up until this point in the story, there wasn’t a single piece of direct, or even indirect evidence, of a concerted effort to protect the right to keep and bear arms to the Constitution in order to maintain local militias for the purpose of enforcing slavery.
All that can be proven is that there were general concerns by some Southerners about a ban on the slave trade and potential meddling in slavery. But those apprehensions were generally within the context of a debate over whether there should be a stronger central government compared to the Articles of Confederation, not the regulation of the militia.
It’s also important to note that by this point, there was no need for federalists to adopt a Second Amendment in order to assure any Southern slave states and secure their approval of the Constitution since they had already ratified it. In fact, some Southern states, including South Carolina and Georgia, hadn’t even proposed such an amendment. Additionally, many states that had recommended an amendment to protect the “right to keep and bear arms” or to protect the local militia were either free states or states that didn’t rely on the militia to enforce slave laws.
Nevertheless, in The Hidden History of the Second Amendment, law professor Carl T. Bogus argued that James Madison’s motive for proposing the Second Amendment was to calm the fears of Southern slave states. He argued that they worried the Constitution would limit their use of militia for slave patrols and to quell revolts. The Second Amendment, he claims, was to ensure this role of the militia wouldn’t be infringed upon by the new federal government.
Bogus examines Madison’s initial draft of the Second Amendment, which was more descriptive than the final version and included a religious exemption clause for military service. Here, his analysis of the draft within the context of federalist and antifederalist debates and the new Constitution’s role at least uses proper context. At the same time, none of it had to do with slavery or affected Southern militia.
Bogus argues that Madison wasn’t trying to articulate an individual right to keep and bear arms, but “to set limits on congressional power. In a sense…Madison’s draft of the Second Amendment made the power to arm the militia concurrent rather than exclusive to the federal government.”
Several points need to be made on this.
The first is that this was a draft, not the final version. It’s doubtful Bogus would put much stock into it if the draft instead had said “the individual right to keep and bear private arms shall not be infringed.”
But since Bogus takes a close look at Madison’s draft language, it’s worth pointing out that the actual adopted language recognizes a “right of the people to keep and bear arms.” If you eliminate the prepositional phrase “a well-regulated militia, being necessary to the security of a free state,” the sentence is still complete due to the predicate (shall not be infringed). The prepositional phrase explains the purpose for the right, but is dependent on the other half of the sentence to make be complete. This means it is not the focus of the sentence.
Hellbound and Down 