Does the Second Amendment prohibit slavery?

What Lysander Spooner argued in 1845 became the law of the land in 1868

|The Volokh Conspiracy |


Is the text of the Second Amendment contrary to slavery? So argued the great abolitionist Lysander Spooner in his 1845 book The Unconstitutionality of Slavery. When the Fourteenth Amendment was ratified in 1866-68, the Amendment's supporters agreed with Spooner that if the Second Amendment were enforced, slavery would be impossible.

Author of important books and pamphlets on scores of subjects, Lysander Spooner's greatest passion was antislavery. A radical theorist, Spooner was a hero to many antislavery activists, including John Brown, whose raid on Harper's Ferry was inspired by reading Spooner. He was "pre-eminent in the group of abolitionists who developed the constitutional law now incorporated in the Fourteenth Amendment." C. Shively, Introduction to 4 Lysander Spooner, Collected Works 11 (1971). For more, see Randy E. Barnett, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, 3 J. Legal Analysis 165 (2011).

Spooner was "the most theoretically profound advocate" of the position that slavery was unconstitutional. David A. J. Richards, Abolitionist Political and Constitutional Theory and the Reconstruction Amendments, 25 Loy. L.A. L. Rev. 1187, 1193 (1992).

In the widely-distributed and frequently reprinted book The Unconstitutionality of Slavery, Spooner argued that the Constitution should be interpreted according to the original public meaning of the words in the text. In case of ambiguity, words should construed according to natural justice. Spooner did not favor looking to speeches by political figures, newspaper essays, or other sources to put a gloss on the constitutional text itself.

As Barnett explains:

Spooner supplemented this interpretive claim about original public meaning with a principle of construction he took from the 1805 Supreme Court case of United States v. Fisher in which John Marshall articulated a 'plain statement' rule of construction for resolving ambiguities in the public meaning of statutes. "Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from," wrote Chief Justice Marshall, "the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects."

As elaborated by Spooner, under this rule of construction, when the original public meaning is ambiguous—that is, when there is more than one reasonable meaning—"the court will never, through inference, nor implication, attribute an unjust intention to a law; nor seek for such an intention in any evidence exterior to the words of the law. They will attribute such an intention to the law, only when such intention is written out in actual terms; and in terms, too, of 'irresistible clearness'"

For example, Spooner's natural justice interpretation of the Second Amendment was straightforward:

This right "to keep and bear arms," implies the right to use them–as much as a provision securing to the people the right to buy and keep food, would imply their right also to eat it. But this implied right to use arms, is only a right to use them in a manner consistent with natural rights–as, for example, in defence of life, liberty, chastity, &c. . . . If the courts could go beyond the innocent and necessary meaning of the words, and imply or infer from them an authority for anything contrary to natural right, they could imply a constitutional authority in the people to use arms, not merely for the just and innocent purposes of defence, but also . . . robbery, or any other acts of wrong to which arms are capable of being applied. The mere verbal implication would as much authorize the people to use arms for unjust, as for just, purposes. But the legal implication gives only an authority for their innocent use. (Unconstitutionality of Slavery, p. 66).

Spooner used the Second Amendment to argue that slavery was unconstitutional. Since a slave is a person who is (or can be) forbidden to possess arms, and the Second Amendment guarantees that all persons can possess arms, no person in the United States can be a slave. Similarly, the militia clauses (Art. I, sect. 8, cls. 15-16) give Congress the power to arm the militia and to call it forth. He elaborated:

These provisions obviously recognize the natural right of all men "to keep and bear arms" for their personal defence; and prohibit both Congress and the State governments from infringing the right of "the people"–that is, of any of the people–to do so; and more especially of any whom Congress have power to include in their militia. The right of a man "to keep and bear arms," is a right palpably inconsistent with the idea of his being a slave. Yet the right is secured as effectually to those whom the States presume to call slaves, as to any whom the States condescend to acknowledge free.

Under this provision any man has a right either to give or sell arms to those persons whom the States call slaves; and there is no constitutional power, in either the national or State governments, that can punish him for so doing; or that can take those arms from the slaves; or that can make it criminal for the slaves to use them, if, from the inefficiency of the laws, it should become necessary for them to do so, in defence of their own lives or liberties; for this constitutional right to keep arms implies the constitutional right to use them, if need be, for the defence of one's liberty or life.  (Id. at 97-98.)

As Spooner recognized, the Constitution never expressly used the words "slave" or "slavery." James Madison explained that he kept those words out of the document because it would be "wrong to admit in the Constitution the idea that there could be property in men." Timothy Sandefur, The Anti-Slavery Constitution, National Review, Sept. 30, 2019. So the word "slavery" did not appear in the Constitution until 1865, with the 13th Amendment: "Neither slavery nor involuntary servitude…."

Spooner argued that the so-called "Fugitive Slave Clause" was no such thing. The actual text said:

No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labour may be due. (Art. IV, sect. 2, cl. 3.)

According to Spooner, the text could be read to apply only indentured servants, or other persons who voluntarily undertaken a service or labor obligation. Indentured servants were not legally free, but (unlike slaves) their required service would end after several years, according to the contract they had signed. For example, some immigrants to America paid for their sea voyage by signing a five-year indenture that the ship's captain could sell upon arrival in America. Indenture contracts were legally enforceable.

In Spooner's theory, reading the clause to encompass slavery would violate Chief Justice Marshall's rule of interpretation.

As for the right of "persons whom the States call slaves" to use arms to resist recapture by government officers, Spooner wrote:

The constitution contemplates no such submission, on the part of the people, to the usurpations of the government, or to the lawless violence of its officers. On the contrary it provides that "The right of the people to keep and bear arms shall not be infringed." This constitutional security for "the right to keep and bear arms," implies the right to use them,–as much a constitutional security for food, would have have implied the right to eat it. The constitution, therefore, takes it for granted that, as the people have the right, they will also have the sense, to use arms, whenever the necessity of the case justifies it. (Lysander Spooner, A Defence for Fugitive Slaves 27-28 (1850).)

Similarly, Spooner contended that unconstitutional laws need not be obeyed pending their repeal. To require obedience to unconstitutional laws would be to allow the government "to disarm the people, suppress the freedom of speech and the press, prohibit the use of suffrage, and thus put it beyond the power of the people to reform the government through the exercise of those rights." Id. at 28.

In Spooner's best seller, the 1852 An Essay on the Trial by Jury, he used U.S. Constitution right to jury trial and "the right of the people to keep and bear arms" to make his point that the "right of resistance is recognized by the constitution of the United States." (p. 17).

Courts in the 1840s and 1850s did not adopt Spooner's view that slavery was unconstitutional. Then in 1865, the Thirteenth Amendment made explicit was Spooner had argued was always implicit: slavery is unconstitutional. The Thirteenth Amendment was insufficient by itself to prevent the newly-freed from being de facto re-enslaved. If former slave states could prohibit freedmen from assembling, from contracting their labor freely, from traveling, or from defending themselves, then they could be reduced to servitude by the Black Codes being adopted in the ex-confederate states.

Just a few weeks after the Confederate States surrendered at Appomattox, Frederick Douglass declared:

Now, while the black man can be denied a vote, while the Legislatures of the South can take from him the right to keep and bear arms, as they can—they would not allow a negro to walk with a cane where I came from, they would not allow five of them to assemble together—the work of the Abolitionists is not finished. Notwithstanding the provision in the Constitution of the United States that the right to keep and bear arms shall not be abridged, the black man has never had the right either to keep or bear arms; and the Legislatures of the States will still have the power to forbid it, under this [Thirteenth] Amendment. They can carry on a system of unfriendly legislation, and will they not do it? Have they not got the prejudice there to do it with? (Frederick Douglass, In What New Skin Will the Old Snake Come Forth? Address delivered in New York City, May 10, 1865, pp. 83-84 [In Frederick Douglass Papers, series 1, vol. 4).

The next year, Congress recognized that disarming the freedmen was indeed part of the efforts of southern state governments and terrorist organizations to keep the freedmen in de facto servitude. So in 1866, the Second Freedmen's Bureau bill ordered the Union army in the South to protect the freedmen's "full and equal benefit of all laws and proceedings for the security of person and estate including the constitutional right to bear arms." The same year, the Civil Rights Act was passed, and the Fourteenth Amendment was sent to the States for ratification. All were enacted with supporters' expressly stated purpose of protecting the Second Amendment self-defense rights of the freedmen. McDonald v. Chicago (2010) (Thomas, J., concurring) (detailing legal history, and citing Spooner).

Whether Spooner's 1845 approach to constitutional interpretation is the best one can be debated. It can be said that parts of his constitutional vision were so compelling–and so much in accord with natural justice–that they became the law of the land. As the Fourteenth Amendment recognizes, slavery and the constitutional right to arms are opposites.