“Let us at once destroy the State Govts”: Ibid., 516.
Even the militias: For a good analysis of how war scrambled traditional thinking, see Williams, “Civic Republicanism and the Citizen Militia,” 574.
“sooner chop off his right hand”: Notes of Debates (August 31, 1787), 566.
“would give great quiet”: Ibid. (September 12, 1787), 630.
“parchment barriers”: In a letter to Thomas Jefferson, October 17, 1788, Founders Online, National Archives, http://founders.archives.gov/documents/Madison/01-11-02-0218, ver. 2013-08-02; source: The Papers of James Madison, vol. 11, 7 March 1788–1 March 1789, ed. Robert A. Rutland and Charles F. Hobson (Charlottesville: University Press of Virginia, 1977), 295–300.
James Wilson of Pennsylvania offered the most influential explanation: Wilson spoke to a crowd gathered during election for delegates to the state ratification convention on October 6, 1787. Ralph Ketcham, ed., The Anti-Federalist Papers and the Constitutional Convention Debates (New York: New American Library, 2003), 181–87. Also available at www.constitution.org/afp/jwilson0.htm.
CHAPTER TWO: RATIFICATION
“We hear that the Convention propose to adjourn”: Bowen, Miracle in Philadelphia, 243.
gave the public a mistaken impression: Maier, Ratification, 58.
“In reading through this immensity”: Bernard Bailyn, Faces of Revolution: Personalities and Themes in the Struggle for American Independence (New York: Vintage, 1992), 229–30.
“This is a new event in the history of mankind”: Governor Samuel Huntington quoted in Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996), 131–32. Huntington spoke to a crowd at the ratification convention in the state.
Amid this contention: Bernard Bailyn believes the fear of the Constitution’s military provisions matched concerns over representation. “There is simply no way to measure the volume and fervor of the antifederalists’ denunciation of this provision, which revived for them not simply a general fear of military power but the specific danger of ‘standing armies,’ a peculiar and distinctive threat to liberty that had been formulated for all time, they believed, in England in the 1690s, and had been carried forward intact to the colonies. There the danger had been fully realized in 1768, when the first British troops were stationed in peaceful Boston, and the predictable ‘massacre’ occurred.” Bailyn, The Ideological Origins of the American Revolution, 338–39.
Congress could “march the whole militia”: Luther Martin, Genuine Information VII, Baltimore Maryland Gazette, January 18, 1788, DHRC XV. The full text can also be found at http://teachingamericanhistory.org/library/document/luther-martin-genuine-information-vii/.
“Who can deny”: “Essays of Philadelphiensis IX,” in Herbert Storing, ed., The Complete Anti-Federalist, vol. 3 (1981), 127–28 (originally published in the Independent Gazetteer, February 7, 1788). Also available at Teaching American History, http://teachingamericanhistory.org/library/document/philadelphiensis-ix/.
In Boston a pamphleteer: Letter from John De Witt to the Free Citizens of the Commonwealth of Massachusetts (December 3, 1787), in Storing, ed., The Complete Anti-Federalist, vol. 4 (1981), 36. Also available at The Founders’ Constitution, vol. 3, art. 1, sec. 8, cl. 16, doc. 5, http://press-pubs.uchicago.edu/founders/documents/a1_8_16s5.html, The University of Chicago Press.
Seven state constitutions: At the time of the Constitutional Convention, the states with a bills of rights or a declarations of rights were: Virginia (1776): “That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.” North Carolina (1776): “XVII: That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.” Maryland (1776): “XXV. That a well-regulated militia is the proper and natural defence of a free government. XXVI. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature. XXVII. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.” Pennsylvania (1776): “XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.” Delaware (1776): “Sect. 10. That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of that protection, and yield his personal service when necessary, or an equivalent thereto; but no part of a man’s property can be justly taken from him or applied to public uses without his own consent or that of his legal Representatives: Nor can any man that is conscientiously scrupulous of bearing arms in any case be justly compelled thereto if he will pay such equivalent.” Massachusetts (1780) “XVII. The people have a right to keep and to bear arms for the common defence. And as in time of peace armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.” New Hampshire (1783): “XIII. No person who is conscientiously scrupulous about the lawfulness of bearing arms, shall be compelled thereto, provided he will pay an equivalent.” These declarations are available in Schwartz, ed. The Bill of Rights, I, 179–382.
gun regulations were common: The best compendium of early gun regulations is Saul Cornell and Nathan Dedino, “A Well Regulated Right: The Early American Origins of Gun Control,” Fordham Law Review 73 (2004): 506.
Other states imposed restrictions less defensible to modern eyes: For a survey of gun laws in the colonial era, see Robert H. Churchill, “Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment,” Law and History Review 25, no. 1 (2007): 162.
Rhode Island conducted a house-to-house census: Ibid., 147.
In the middle of the ratification fight: Kevin M. Sweeney, “Firearms, Militias, and the Second Amendment,” in Cornell and Kozuskanich, eds., The Second Amendment on Trial, 355.
“the natural right of resistance”: William Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of 1765–1769 (Chicago: University of Chicago Press, 1979), 105.
affrighting: Justice Antonin Scalia cites this tort as an example of the kinds of limits on the right to bear arms he envisioned after Heller. He told PBS’s NewsHour, “[Heller] didn’t purport to say everybody can carry whatever weapons he wants. In fact, it mentioned that there was a misdemeanor in ancient times caled affrighting. Affrighting consisted of carrying a frightening weapon, a head axe or something like that, to scare people.” Margaret Warner, PBS NewsHour, “Justice Scalia Writes How-to Interpret Guide for Interpreting the Law,” August 9, 2012, www.pbs.org/newshour/bb/law/july-dec12/scalia_08-09.html.
“It ought to be left to the state governments”: Brutus, No. 7 (January 3, 1788), in Storing, ed., The Complete Anti-Federalist, 7 vols. (Chicago: University of Chicago Press, 1981). Also available at The Founders’ Constitution, vol. 1, chap. 8, doc. 26, http://press-pubs.uchicago.edu/founders/documents/v1ch8s26.html.
“The states will regulate and administer the criminal law”: Tench Coxe, “A Freeman,” Essays: I–III, in Colleen A. Sheehan, Friends of the Constitution: Writings of the “Other” Federalists, 1787–1788, ed. Colleen A. Sheehan and Gary L. McDowell (Indianapolis: Liberty Fund, 1988), http://oll.libertyfund.org/title/2069/156158on2013-07-31.
“Te
chnological advances have created a sharp distinction”: Nelson Lund, “The Past and Future of the Individual’s Right to Bear Arms,” Georgia Law Review 31 (1996): 1–76. Lund has acknowledged the mismatch between the intense focus of the time of the Framers and debates today: “The central purpose of the Second Amendment—discouraging political oppression—offers little justification for a right to possess or carry handguns.” Nelson Lund, “The Second Amendment, Political Liberty, and the Right to Self-Preservation,” Alabama Law Review 29 (1987): 103–30. Lund nonetheless believes the Second Amendment was also intended to protect private gun ownership for personal protection.
In the decade before the Revolution: Cornell, A Well-Regulated Militia, 22.
Some patterns start early: Senator Obama’s controversial musings were revealed by a blogger, Mayhill Fowler, “No Surprise That Hard-Pressed Pennsylvanians Turn Bitter,” Huffington Post, April 11, 2008.
Opponents tried to block the bid: The effort to dragoon legislators to achieve a quorum in Pennsylvania is recounted in Maier, Ratification, 62–64.
Anti-Federalists presented a list of proposed amendments: “Report of the Minority of the Convention,” in John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber, and Margaret A. Hogan, eds., The Documentary History of the Ratification of the Constitution X Digital Edition (Charlottesville: University of Virginia Press, 2009) (hereinafter DHRC), 623.
This may have been a response: For a discussion of the English Game Act of 1671, see Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (Cambridge: Harvard University Press, 1994), 69–76.
Pennsylvania was convulsed: Maier, Ratification, 121.
The dissidents printed their own unofficial minority report: “The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents,” in Ketchum, ed., The Anti-Federalist Papers and the Constitutional Convention Debates, 243–65. This pamphlet has been the source of much controversy among later disputants. Anti-gun-control lawyers insist that it illuminates the meaning of the Second Amendment, which they contend protected gun ownership for self-defense as well as for militia service. Some writers and historians, notably Garry Wills, have insisted that the minority report merely reflects the last-minute cavils of the losing side in one state. Garry Wills, “To Keep and Bear Arms,” New York Review of Books (September 21, 1995), www.nybooks.com/articles/archives/1995/sep/21/to-keep-and-bear-arms/?pagination=false. Pauline Maier, in her authoritative Ratification, concludes it was, in fact, widely circulated.
Noah Webster: Bowen, Miracle in Philadelphia, 246.
Hancock’s theatricality proved decisive: Maier, Ratification, 192.
Hancock’s triangulation seemed to recoil: Ibid., 198.
The delegates recommended that Congress enact nine amendments: Massachusetts ratifying convention, January 31, 1788, in Schwartz, ed., Bill of Rights, II, 677–78.
Adams proposed additional changes: The amendments forwarded by the vote of the Massachusetts convention did not much mirror state bills of rights. Samuel Adams proposed additional amendments, including one that declared, “the said Constitution be never construed to authorize Congress . . . to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them . . .” The journal of the convention notes broadly that Adams’s proposals were “debated a considerable time,” but were opposed by the convention; he withdrew them. Schwartz, ed., The Bill of Rights, II, 707. In fact, they were not withdrawn—they were defeated. Ibid., 675. We have no transcript from the convention to suggest whether the “bearing arms” provisions were specifically among those debated.
New Hampshire ratified: New Hampshire ratifying convention proposed amendments, ibid., 761, also available at http://avalon.law.yale.edu/18th_century/ratnh.asp.
dominated its politics: See generally Harlow Giles Unger, Lion of Liberty: Patrick Henry and the Call to a New Nation (New York: Da Capo, 2010).
issues of slavery: Carl Bogus argues that the Southerners on both sides of the Constitution followed a euphemistic code in discussing the peculiar institution during the convention. See Carl T. Bogus, “The Hidden History of the Second Amendment,” University of California at Davis Law Review 31 (1998): 309. Others dispute that slave revolt was in mind: the manumission societies just forming in the North were dominated by pacifist Quakers. See Uviller and Merkel, The Militia and the Right to Arms, 189–90.
“They’ll take”: Henry Mayer, Son of Thunder: Patrick Henry and the American Republic (New York: Grove, 2001), 434. Mayer cites Hugh Blair Grigsby, a nineteenth-century historian, who interviewed attendees at the convention in his book The History of the Virginia Federal Convention of 1788 (Virginia Historical Society, 1890). Grigsby quotes Henry as warning, “They’ll free your niggers!” (“The audience passed instantly from fear to wayward laughter; and my informant said that it was most ludicrous to see men who a moment before were half frightened to death, with a broad grin on their faces.”)
George Mason focused with vehemence: Here Mason was being disingenuous. In the Constitutional Convention, he had proposed that the federal government be given much more power over state militias than it was ultimately granted. Those records were still secret, though. Once Mason decided he was against the Constitution, as Madison had worried in a letter to Washington, he would throw all consistency aside to seek to block it. James Madison to George Washington, October 18, 1787.
“from their situation”: Statement of delegate George Nicholas, Virginia Ratification Convention, June 14, 1788, DHRC, X, 1280. Also available at www.constitution.org/rc/rat_va_12.htm.
prepared for a duel: Unger, Lion of Liberty, 227.
“The militia may be here destroyed”: DHRC, X, 1276. Also available at http://press-pubs.uchicago.edu/founders/print_documents/a1_8_15s13.html.
“The militia, Sir”: Ibid. Henry’s speech would be flagrantly misquoted in later debates over gun rights. See Part Two of this book.
“Slavery is detested”: DHRC, X, 1476–77.
Its proposed Seventeenth Amendment proclaimed: Schwartz, ed., Bill of Rights, II, 842.
“shall have the power to provide”: Ibid., 843.
Madison was aghast: To Alexander Hamilton from James Madison, June 27 [1788], Founders Online, National Archives, http://founders.archives.gov/documents/Hamilton/01-05-02-0012-0032, ver. 2013-08-02; source: The Papers of Alexander Hamilton, vol. 5, June 1788–November 1789, ed. Harold C. Syrett (New York: Columbia University Press, 1962), 91–92; James Madison to George Washington, June 27 [1788].
Without revenue, government would grow so weak: Conservative activist Grover Norquist articulated this strategy in an interview with NPR’s Mara Liasson on May 25, 2001. “I don’t want to abolish government. I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub.”
The state’s ambitious governor: George Clinton was another archetype: a scheming New York political boss who mixed business with politics. For a pithy description, see Brookhiser, James Madison, 63.
“If a well-regulated militia”: Federalist 29, in Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Lawrence Goldman (New York: Oxford University Press, 2008), 139.
“The Letters of Brutus”: Robert Yates, a state judge who had walked out in alarm from the Constitutional Convention, presumably wrote as Brutus, though some scholars now favor the merchant Melancton Smith.
Two mighty nations: Brutus’s reply is in Ketchum, The Anti-Federalist Papers and the Constitutional Convention Debates, 303.
“Let a regular army”: Federalist 46, in Hamilton, Madison, and Jay, The Federalist Papers, 237.
Madison resisted: http://founders.archives.gov/documents/Jefferson/01-13-02-0023.
The states had proposed: For a comprehensive look at the amendments proposed by the v
arious state conventions, see Donald S. Lutz, “The State Constitutional Pedigree of the U.S. Bill of Rights,” Publius: The Journal of Federalism 22, no. 2 (1992): 19–45. Lutz shows how Madison exercised an editor’s prerogative in ignoring some, combining others.
If they were ever debated: Kenneth R. Bowling, “A Tub to the Whale: The Founding Fathers and the Adoption of the Federal Bill of Rights,” Journal of the Early Republic 8 (1988): 228.
“I will now add”: Thomas Jefferson letter to James Madison, December 20, 1787, www.loc.gov/exhibits/jefferson/jefffed.html.
CHAPTER THREE: THE TUB TO THE WHALE
“The edicts of Mr. Henry”: George Washington to James Madison, November 17, 1788, Founders Online, National Archives, http://founders.archives.gov/documents/Washington/05-01-02-0090, ver. 2013-08-02; source: The Papers of George Washington, Presidential Series, vol. 1, 24 September 1788–31 March 1789, ed. Dorothy Twohig (Charlottesville: University of Virginia Press, 1987), 112–16.
“rivulets of blood”: Brant, James Madison, 237.
“Henry did not arrange”: Richard Labunski, James Madison and the Struggle for the Bill of Rights (Oxford: Oxford University Press, 2006), 142.
Monroe nursed a grudge: Ibid., 153.
“dogmatically attached”: Bowling, “ ‘A Tub to the Whale,’ ” 231.
Patrick Henry bitterly suspected: Unger, Lion of Liberty, 233.
“At the same time”: Madison wrote to Jefferson on October 17, 1788: “Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current.” From James Madison to Thomas Jefferson, October 17, 1788. Founders Online, National Archives, http://founders.archives.gov/documents/Madison/01-11-02-0218, ver. 2013-08-02; source: The Papers of James Madison, vol. 11, 7 March 1788–1 March 1789, ed. Robert A. Rutland and Charles F. Hobson (Charlottesville: University of Virginia Press, 1977), 295–300.
The Second Amendment Page 22