Robert Yates, chairman of the Special Committee, wrote to Mason on June 21, thanking him for the proposed amendments and enclosing a draft agreed to by many of the New York convention delegates.6 While this draft has not been located, the New York convention would adopt much of the Virginia language but added its own distinct proposals as well.
The New York ratification convention met on June 17 through July 26, 1788. The recorded debates were not kept well as were those of Virginia, and in the final days—when a bill of rights was being debated—virtually nothing other than bare minutes were taken down. In the recorded debates, the federalists gave long speeches on the urgency of saving the states from foreign powers and of promoting commerce. Antifederalists spoke at length on the basis of representation in Congress and in favor of an amendment against direct taxation.
In the opening debate in the convention, Chancellor Robert R. Livingston gave a glowing speech with varied arguments for the Constitution, just brushing on “the necessity of adding to the powers of Congress, that of regulating the militia . . . .”7
Leading the antifederalists was John Lansing, Jr., who had been a delegate at the federal convention but who, with his colleague Robert Yates, opposed a strong national government and withdrew from the convention more than two months before it finished.8 Delivering the second speech of the New York convention, Lansing declared “the almost unanimous opinion” of his constituents in support of amendments, which “will have a tendency to lessen the danger of invasion of civil liberty by the general government.”9
Among others, John Williams foresaw that the new system would lead to the destruction of the states:
And what restraint have they against tyranny in their head? Do they rely on any thing but arms, the ultima ratio? . . . Are they [the states] not deprived of the command of the purse and the sword of their citizens? Is not the power, both over taxation and the militia, wrested from their hands by this Constitution, and bestowed upon the general government?10
Chancellor Robert R. Livingston rejoined: “What, then, is taken away? Have not the states the right of raising money, and regulating the militia?”11 He and his federalist colleagues depicted the antifederalists as alarmists.
On July 1, Thomas Tredwell delivered the last lengthy speech of the convention that was recorded, and it was the foremost demand for a bill of rights. Tredwell averred: “The first and grand leading, or rather misleading, principle in this debate, and on which the advocates for this system of unrestricted powers must chiefly depend for its support, is that, in forming a constitution, whatever powers are not expressly granted or given the government, are reserved to the people . . . .”12
This was demonstrated by the enumeration of certain rights in the Constitution—restrictions on suspension of the writ of habeas corpus and on passage of any bill of attainder or title of nobility. “Are there any clauses in the Constitution extending the powers of the general government to these objects?” In response to the suggestion that these were inserted for greater caution, Tredwell argued, why had not “a greater caution” been used to secure other rights, such as a free press, trial by jury, and religious liberties? It was to be wished “that these and other invaluable rights of freemen had been as cautiously secured as some of the paltry local interests of some of the individual states.”13 The latter included items such as the importation of slaves until 1808, which was “repugnant to every principle of humanity.”14 Tredwell implored:
In this Constitution, sir, we have departed widely from the principles and political faith of ’76, when the spirit of liberty ran high, and danger put a curb on ambition. Here we find no security for the rights of individuals, no security for the existence of our state governments; here is no bill of rights, no proper restriction of power; our lives, our property, and our consciences, are left wholly at the mercy of the legislature . . . .15
Tredwell also spoke on the structure of the government, asking at one point: “What sovereignty, what power is left to it, when the control of every source of revenue, and the total command of the militia, are given to the general government? That power which can command both the property and the persons of the community, is the sovereign, and the sole sovereign.”16
Tredwell minced no words: “we may now give away, by a vote, what it may cost the dying groans of thousands to recover; that we may now surrender, with a little ink, what it may cost seas of blood to regain; the dagger of Ambition is now pointed at the fair bosom of Liberty, and, to deepen and complete the tragedy, we, her sons, are called upon to give the fatal thrust.”17 As he had noted earlier, in opposition to the tyranny of Philip in the Netherlands, “the people took up arms in their own defence,” defeating “all the armies of that haughty monarch.” The same might be necessary in America, as historically a great cause of human misery was the abuse of power by government.18
Following this speech, motions were made to restrict the powers of Congress. John Lansing moved to require a two-thirds vote of Congress to raise a standing army in time of peace. He also moved to amend Congress’ power over the militia as follows:
Provided, That the militia of any state shall not be marched out of such state without the consent of the executive thereof, nor be continued in service out of the state, without the consent of the legislature thereof, for a longer term than six weeks; and provided, that the power to organise, arm, and discipline the militia, shall not be construed to extend further than to prescribe the mode of arming and disciplining the same.19
Melancton Smith, another prominent antifederalist, then moved to amend the clause granting Congress power to make all laws necessary and proper to implement its other powers with the following: “Provided, That no power shall be exercised by Congress, but such as is expressly given by this Constitution; and all others, not expressly given, shall be reserved to the respective states, to be by them exercised.”20 Thus, state powers—including the power to maintain the militia—were considered as amendments to the provisions regarding congressional powers.
Other amendments were offered as the convention hurried to complete debate on the remainder of the Constitution. Then, on July 7, John Lansing “read, and presented to the committee, a bill of rights to be prefixed to the Constitution.”21 Unfortunately, by now the convention reporter was no longer recording any speeches at all but was raking down only the barest of minutes, so no debate on the proposed bill of rights was recorded. The minutes reflect that on July 10, Lansing “submitted a plan of amendments, on a new arrangement, and with material alterations. They are divided into three—1st, explanatory; 2d, conditional; 3d, recommendatory.”22
Debate continued for several more days—again, none of it recorded—until on July 19, Lansing “moved to postpone the several propositions before the house, in order to take into consideration a draft of a conditional ratification, with a bill of rights prefixed, and amendments subjoined. Debates arose on the motion, and it was carried. The committee then proceeded to consider separately the amendments proposed in this plan of ratification.”23 Finally, on July 26, the convention ratified the Constitution as well as a recommendation to the other states that amendments, including a bill of rights, promptly be considered.24
The form of ratification began with a declaration of a number of propositions that constituted a bill of rights. It clearly differentiated the people from the government, whether federal or state:
That all power is originally vested in, and consequently derived from, the people, and that government is instituted by them for their common interest, protection, and security.
That the enjoyment of life, liberty, and the pursuit of happiness, are essential rights, which every government ought to respect and preserve.
That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remai
ns to the people of the several states, or to their respective state governments, to whom they may have granted the same . . . .25
Having distinguished above between “the people of the several states” and “their respective state governments,” the declaration next set forth the following, which refer to rights of “the people”:
That the people have an equal, natural, and unalienable right freely and peaceably to exercise their religion, according to the dictates of conscience; and that no religious sect or society ought to be favored or established by law in preference to others.
That the people have a right to keep and bear arms; that a well regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.26
Thus, “the people” had a right to religious freedom and to have arms. Regarding the latter, New York followed Virginia in beginning with the declaration “that the people have a right to keep and bear arms,” and then including a separate clause declaring the militia to be necessary for a free state. While Virginia referred to the militia as “composed of the body of the people, trained to arms,”27 New York characterized the militia as “including the body of the people capable of bearing arms.”28
Next were three military-related provisions that implicated individual rights. The first declared: “That the militia should not be subject to marital law, except in time of war, rebellion or insurrection.” The other two proclaimed that standing armies are dangerous to liberty, and that soldiers should not be quartered in houses.29
Several procedural guarantees for persons accused of crime followed, including that of indictment by grand jury, “except in the government of the land and naval forces, and of the militia when in actual service.” The following provision included a declaration about the political benefit of a right, similar to the above militia clause following the right-to-bear-arms clause: “That the trial by jury . . . is one of the greatest securities to the rights of a free people, and ought to remain inviolate.”30
Rights of “the people” were no different than those of the “person,” and in the following both terms are used separately without any difference in meaning: “That the people have a right peaceably to assemble together to consult for their common good, or to instruct their representatives, and that every person has a right to petition or apply to the legislature for redress of grievances.”31
The New York convention ratified the Constitution “declaring that the rights aforesaid cannot be abridged or violated” and with confidence that the proposed amendments would be promptly considered.32
The convention then added more conditions to the ratification, including that until a convention was convened for proposing amendments to the Constitution, “the militia of this State will not be continued in service out of this State for a longer term than six weeks, without the consent of the Legislature thereof.”33
The convention adopted a separate resolution urging their representatives in Congress to approve a list of amendments concerning the structure of the federal government and the federal-state relation.34 No standing army could be raised, and war could not be declared, without the consent of twothirds of Congress.35 While not including the same proposal as Virginia for a state militia power, the convention proposed its above ban on compulsion of militia service outside a state for over six weeks without consent of the state legislature.36
The tables were now turned. In the first state ratifications, the federalists had rammed through the Constitution without allowing so much as a suggestion that a bill of rights should be adopted. This was not without strong opposition in the populous states of Pennsylvania and Massachusetts, where significant bills of rights were proposed. New Hampshire bucked the trend with its recommendatory amendments, and by now the influential states of Virginia and New York based their ratifications on the propositions that individuals have basic rights. The individual right to keep and bear arms figured prominently in the demands for a bill of rights in each of these five states.37
NORTH CAROLINA
Well before that state’s convention met, one “Common Sense” warned in “To the People of North Carolina,” published in the Wilmington Centinel, that under the proposed Constitution, “a citizen may be deprived of the privilege of keeping arms for his own defence, he may have his property taken without a trial by jury, he may be ordered to march with the rest of the militia to New Hampshire, or any where else . . . . These things are entirely contrary to our constitution . . . .”38 The guarantee of the North Carolina Constitution that “the People have a right to bear Arms for the Defence of the State”39 was understood as protecting the right of “a citizen”—a person, not a collective—“of keeping arms for his own defence.”
A chief objection to the Constitution in North Carolina was exemplified in a federalist’s account of a sermon that mentioned the proposed federal capital: “‘This, my friends,’ said the preacher, ‘will be walled in or fortified. Here an army of 50,000, or perhaps 100,000 will be finally embodied, and will sally forth and enslave the people, who will be gradually disarmed.’ This absurd assumption set our blood in fermentation strongly excited already in party feeling.”40
While the federalists thought it ludicrous that the federal government would disarm the people, the antifederalists were the majority in the North Carolina ratification convention, and they were leaving nothing to chance. The convention met between July 21 and August 4, 1788, and refused to ratify the Constitution until after Congress proposed the Bill of Rights. Willie Jones, the draftsman of North Carolina’s Declaration of Rights of 1776, would lead the antifederalist majority in the convention.41
In the opening days, most of the debate centered on the individual clauses of the proposed Constitution in which hot topics like direct taxes received great attention. To be sure, David Caldwell opined that “Unalienable rights ought not to be given up, if not necessary.”42 And Governor Samuel Johnston noted, “The British Parliament can do every thing they please. Their bill of rights is only an act of Parliament, which may be, at any time, altered or modified, without a violation of the constitution.”43
The usual controversy over the militia arose. Mr. Maclaine asked, “Will the militia be called out by the general government to enslave the people—to enslave their friends, their families, themselves? The idea of the militia being made use of, as an instrument to destroy our liberties, is almost too absurd to merit a refutation.”44
Midway through the convention, a great debate ensued over a bill of rights—not about what specific guarantees it should contain, but about whether it was necessary and the general nature of the guarantees it would contain. Samuel Spencer started the debate as follows:
There is no declaration of rights, to secure to every member of the society those unalienable rights which ought not to be given up to any government . . . . There ought to be a bill of rights, in order that those in power may not step over the boundary between the powers of government and the rights of the people, which they may do when there is nothing to prevent them. They may do so without a bill of rights; notice will not be readily taken of the encroachments of rulers, and they may go a great length before the people are alarmed.45
In short, as Spencer concluded, a bill of rights was necessary “to secure those unalienable rights, which are called by some respectable writers the residuum of human rights, which are never to be given up.”46
Maclaine replied that “the powers of Congress are expressly defined,” which was superior to a bill of rights.47 Governor Johnston added that “it would have been the highest absurdity to undertake to define what rights the people of the United States were entitled to; for that would be as much as to say they were entitled to nothing else.” Eyes would roll today at his further assertion that “the rights of the people . . . cannot be affected by the federal courts.”48
But it was James Iredell who became the leading federalist advocate. England had no written constitution, and such bills of
rights as originated there were wrested from monarchs. Under the proposed federal Constitution, “no power can be exercised but what is expressly given.”49 Iredell’s explanation was classic:
A bill of rights, as I conceive, would not only be incongruous, but dangerous. No man, let his ingenuity be what it will, could enumerate all the individual rights not relinquished by this Constitution. Suppose, therefore, an enumeration of a great many, but an omission of some, and that, long after all traces of our present disputes were at an end, any of the omitted rights should be invaded, and the invasion be complained of; what would be the plausible answer of the government to such a complaint? Would they not naturally say, “. . . So long as the rights enumerated in the bill of rights remain unviolated, you have no reason to complain. This is not one of them.”50
The following year, Iredell would go on to become a Justice of the U.S. Supreme Court. It is worth noting as an aside that, as a young lawyer in 1771, Iredell wrote the following in a letter to his mother, capturing the sentiments of his generation about a right that went unquestioned:
Be not afraid of the Pistols you have sent me. They may be necessary Implements of self Defence, tho’ I dare say I shall never have Occasion to use them . . . . It is a Satisfaction to have the means of Security at hand if we are in no danger, as I never expect to be. Confide in my prudence and self regard for a proper use of them, and you need have no Apprehension.51
Samuel Spencer was not persuaded by Iredell’s above assurances in the convention. The applicability of federal law to individuals, and its implementation by federal officers and courts, required a declaration “for securing the rights of individuals. . . . There are certain human rights that ought not to be given up . . . .”52
Maclaine replied that “if there be certain rights which never can, nor ought to, be given up, these rights cannot be said to be given away, merely because we have omitted to say that we have not given them up. . . . If we have this inherent, this unalienable, this indefeasible title to those rights, if they are not given up, are they not retained?”53 All of those “ifs” could not have raised the comfort level of the bill of rights proponents—Maclaine did not even concede that such rights existed.
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