The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Second Amendment Roundup: To Preserve Liberty, Not Slavery
Carl Bogus invented the fiction that the purpose of the Second Amendment was slave control.
Back in 1998—a decade before Heller—Prof. Carl Bogus claimed to have discovered a "hidden history" showing that the Second Amendment was adopted to ensure that militias could enforce slave control. Since that theory crops up now and then, in 2021 I posted a comprehensive historical refutation in SSRN, which was subsequently published in Georgetown Journal of Law & Public Policy.
Bogus has now rehashed his 1998 theory in Madison's Militia: The Hidden History of the Second Amendment (Oxford University Press, 2023), which adds nothing new on point. He states up front that he will not address how legal scholars or the courts have interpreted the Amendment, except to assert, without any support, that James Madison and his colleagues "would have been astonished" at the Supreme Court's holding that the Amendment "grants individuals a right to have guns…." ("Grants?" No, confirms.)
Bogus failed to address or even mention my paper, which is the only comprehensive critique of his 1998 article, even though it was first published a year-and-a-half before his book. Oxford University's readers who vetted his manuscript were either asleep at the wheel or biased in favor of his argument. This is good example of why courts today, when searching for historical analogues under Bruen, should rely on original historical sources and not skewed declarations by "historians."
Bogus calls his tome "a mystery book" about "why James Madison decided to write the Second Amendment," because "there is no direct evidence about what the Founders intended." But his agenda is clear: instead of "the Minuteman at Lexington, with a musket in his hands … the more accurate image [of the Second Amendment] is that of the musket in the hands of the militiaman on slave patrol in the South."
Denigrating America's patriots in order to infect the Second Amendment with racism makes it easier today to criminalize the right to keep and bear arms, and is consistent with other contemporary efforts, such as the 1619 Project, to demonize America and its founders. Not surprisingly, Bogus served on the board of directors of Handgun Control Inc., the anti-gun lobby which morphed into the Brady Center.
Bogus focuses on the militia and ignores what he considers to be the non-existent individual right. The mystery supposedly reveals itself in the Virginia ratification convention of 1788. "Without spelling it out in so many words," Bogus writes, Patrick Henry objected to an exclusive federal power over the militia because it would "subvert the slave system indirectly." George Mason's warning that the disarming of the militia could lead to tyranny was actually a ruse; such were "encoded discussions" about slave control, Bogus speculates, that could not be made "directly" because "public discussion of it was often frowned upon."
According to Bogus, Madison supposedly knew he was wrong in arguing that the states had a concurrent power with the federal government to arm the militia, so he wrote the Second Amendment to "fix this problem." Bogus doesn't realize that most of the debate was about the militia clauses in the text of the Constitution, not what became the noncontroversial right to bear arms in the Bill of Rights. He keeps hitting the state militia piñata while ignoring the individual right.
Bogus next pilots his time machine to the American Revolution. Through his hidden history lens, the colonists were concerned only with preventing a slave insurrection instead of defending against attacks by the British army. Yet he quotes a historian as noting: "No white person was killed by a slave rebellion in colonial Virginia."
In real history, on April 21, 1775, Virginia's governor Lord Dunmore seized the gunpowder from the public magazine at Williamsburg. Per Bogus, "This left [Virginians] vulnerable to slave revolts." But Virginians were incensed by Dunmore's confiscation because it left them vulnerable to arbitrary Royal authority. Then they got word of Lexington and Concord. Patrick Henry saw the opportunity to rouse the people to arms, observing, "tell them of the robbery of the magazine and that the next step will be to disarm them, and they will then be ready to fly to arms to defend themselves."
Bogus paints Henry as fearing a non-existent slave revolt rather than what it was – a British attempt to disarm the Americans to subjugate them. Henry organized an independent militia to counter the Redcoats, not to do slave patrol duty. Read the original source, ch. XII of Patrick Henry (1891), which explains how Dunmore seized the gunpowder to disarm the Americans, who in turn formed militia for defense against the British.
Bogus doesn't know what to do with the fact that, during the Revolution, four states adopted arms guarantees in their bills of rights, and three of them were in the North. Most states thereafter adopted arms guarantees, almost all of which were read to protect individual rights.
In 1776, Pennsylvania declared "that the people have a right to bear arms for the defense of themselves and the state…." That language clearly included self-defense and defense of the Commonwealth.
But to Bogus, this was a collective right only. The hidden meaning of "themselves," he says, is found in a 1754 (actually it was 1755) militia act providing that it "may be lawful for the freemen of this province to form themselves." Yes, that's a typo; the law said "form themselves into Companies." That law also declared "their Duty to fight in Defence of their Country, their Wives, their Families and Estates."
Plainly, the law and, later, the constitution recognized arms bearing for defense of self, family, and the Commonwealth. It wasn't to protect slavery, which Pennsylvania became the first state to ban in 1780.
Vermont adopted the same arms right as Pennsylvania, but its purpose wasn't to support slavery, which was prohibited by the same constitution that adopted the arms guarantee. Per Bogus, it was again a collective right only. Sorry Ethan Allen and your Green Mountain Boys, your gun toting was only at the sufferance of the state.
North Carolina simply declared that "the people have a right to bear arms for the defense of the state…." According to Bogus, that was "to make it clear that the right to bear arms for the defense of the state only [sic]." So "themselves" meant something after all?
Massachusetts was the first to add, in 1780, keeping arms: "The people have a right to keep and bear arms for the common defence." Bogus says one couldn't keep for individual reasons, but the law didn't preclude using arms for self-defense. And by the way, beginning the very next year, judicial decisions in the Commonwealth declared slavery to be unlawful.
So Bogus fails to acknowledge that three of the first four state constitutions to recognize the right to bear arms also abolished slavery at the same time or shortly thereafter. Nothing to see here.
While devoting scores of pages to irrelevant subjects like biographies of contemporaries and battles in the Revolution, Bogus ignores critical demands for a federal bill of rights with an arms guarantee. George Bryan, who led the effort to abolish slavery in Pennsylvania, helped draft the antifederalist Dissent of the Minority in that state's ratification convention which included "That the people have a right to bear arms for the defense of themselves and their own state…."
Bogus ignores the proposal of Samuel Adams in the Massachusetts convention which would have prohibited the federal government from preventing the people "from keeping their own arms." And he ignores that New Hampshire, whose 1780 constitution was interpreted to abolish slavery, was the first state to ratify the constitution and demand a bill of rights, including that "Congress shall never disarm any citizen…." Its leading advocate was Joshua Atherton, whose most prominent argument against the constitution was that it sanctioned slavery.
Were all of these abolitionists naively duped into supporting the right to bear arms before the Second Amendment was even drafted a year later by the crafty James Madison?
Jumping forward to Madison's proposal of the Bill of Rights to Congress in 1789, Bogus imagines that "had" Madison told Roger Sherman of the need to ensure Congress couldn't "undermine the slave system by disarming the militia, Sherman would have been supportive….We shall never know whether such conversation took place." Right, but there's no evidence that Madison said any such thing, and "had" Madison said something else, we wouldn't know that, either.
"Haunted" by Patrick Henry's ghost, Madison proposed the Second Amendment to address Henry's supposed (but nonexistent) argument that Congress must not disarm the militia and thus undermine slavery. Yet despite all, "Madison paid relatively little attention to his right-to-bear-arms provision." The same could be said for this book, which says virtually nothing about that part of the Amendment and instead focuses almost entirely on the militia clauses in the text of the Constitution.
An anticlimactic chapter on the English Declaration of Rights of 1689 is squeezed in at the end, but Bogus doesn't know what to do with its provision that "the Subjects which are Protestants, may have Arms for their Defence," as it had nothing to do with slavery.
The Bogus thesis was picked up by Prof. Carol Anderson in The Second (2021), where she maintains: "The Second Amendment was … not some hallowed ground but rather a bribe, paid again with Black bodies." Her argument, a condensed version of which appears in Nikole Hannah-Jones, The 1619 Project, focuses on the deprivation of Second Amendment rights as applied to African Americans.
But the defect at the Founding was not recognizing all individuals as among "the people" referred to in the First, Second, and Fourth Amendments. That failure did not taint the Amendments themselves, but instead led to the belated inclusion by the Fourteenth Amendment of all persons, including African Americans, within the scope of those constitutional rights.
In Arming America, Michael Bellesiles fraudulently made stuff up and invented sources to back it up. To his credit, Professor Bogus alerts readers that he is making stuff up and doesn't pretend to cite sources. One only wonders why Oxford University Press would publish such fiction.