Race and the Second Amendment: Protecting the “Peculiar Institution”

by Scott Wagner

This is the first part of our series on race and the Second Amendment. For Part Two, click here. For Part Three, click here.

Illustration by Gabriela Sibilska

James Madison had a problem.

It was 1788, and the states had narrowly ratified the new US Constitution. But Madison, the lauded “Father of the Constitution,” could not bask in what should have been his crowning success. He was locked in a tight race in Virginia’s Fifth Congressional District with James Monroe. Voters in the district, particularly white Baptists, opposed the ratification of the Constitution; they wanted additional guarantees of religious freedom not included in the original document. Other Virginians had already demanded a Bill of Rights, complaining that the Constitution did not provide proper protections for individual liberties.

Madison was at best ambivalent about amending the Constitution; so much work had gone into crafting the document, and new proscriptions, he feared, would weaken the structure agreed upon in the Constitutional Convention. The ratification of the Constitution—and his impending political defeat—triggered a change of heart. “Amendments,” he wrote to Baptist minister George Eve, “if pursued with a proper moderation and in a proper mode, will not only be safe, but may [provide] additional guards in favour of Liberty.” Madison won his seat with 57 percent of the vote and would go on to pen the first ten amendments to the US Constitution, known today as the Bill of Rights.

The Constitutional Convention in Philadelphia, 1787, painted by Junius Brutus Stearns

The second of those amendments states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The right to bear arms has deep roots in both legal and ideological traditions. The English Bill of Rights of 1689, drafted following the Glorious Revolution, declared that “Protestants may have arms for their defence suitable to their conditions.” The Articles of Confederation, the original governing document for the new United States, also stipulated that each state “shall always keep up a well-regulated and disciplined militia.” The Founding Fathers preferred a system of national defense predicated on state militias—despite their military ineffectiveness—to one prioritizing a central, standing army. Samuel Adams warned that standing armies were “always dangerous to the Liberties of the People,” and Madison cautioned the Constitutional Convention that throughout history, “armies kept up under the pretext of defending, have enslaved the people.” Witnessing the atrocities committed by the British Army during the Revolutionary War only reinforced these fears. The state militias, in contrast to a standing army, could serve as an informal check on a potentially tyrannous central government by presenting the threat of armed revolution, as Madison argued in Federalist No. 46—though the suggestion that modern special forces units of the US Army feel threatened by paunchy, untrained woodsmen armed with handguns is laughable.

The current state of the debate surrounding the Second Amendment is contentious, to say the least. Advocates for gun regulation emphasize the first part of the amendment, tying the right to bear arms to membership in a well-regulated militia like the National Guard. Gun rights activists point to the latter part of Madison’s folly, decrying that the right to bear arms “shall not be infringed.”

The dichotomy between the two schools of thought, and their often self-serving application of historical evidence, is specious and misleading. The Militia Act of 1792 offers an illuminative example. The legislation standardized armament and age regulations for state militia members. “Every free able-bodied white male citizen” between the ages of 18 and 45 was to “provide himself with a good musket or firelock” and register for militia service. The act enshrined individual ownership of weaponry, but with the intention that those weapons were to be used by civic-minded citizens in defense of their republic. As a result, both collective and individual rights of gun ownership are traditions within US law.

There is, however, a pernicious problem with the Second Amendment. It was written with an eye towards ensuring that the citizens of the United States would remain armed to protect the liberty of their new republic. At the time it was written, Black individuals were not considered citizens. The right to bear arms did not extend to them. Too often, those professing to be defenders of the Second Amendment have perverted the idea as a means to protect the ingrained hierarchy of white supremacy and systematized racism that pervade American history. If American citizens of the present intend to address the racist structures of their past, they would do well to understand the history of the Second Amendment.

A Monopoly of Violence

A sugar plantation in Antigua, painted by William Clark, 1823. The work of enslaved persons was always policed through force by overseers. British Library

Atlantic slavery transformed and evolved over time, but one facet remained a painful constant: violence. It was the linchpin of the entire slave hierarchy. Corporal punishment was a daily menace, the whip the primary incentive to work. A 1669 Virginia law dictated that slaveowners who punished enslaved persons so severely that “by the extremity of the correction [they] should chance to die” would be acquitted from any felony. The act was glibly entitled “The Casuall Killing of Slaves,” invoking images of a Sunday stroll through the park rather than the brutal torture and murder of human beings.

A 1705 “Act Concerning Servants and Slaves” in Virginia delineated the differences between white indentured servants and enslaved Africans and attempted to codify their separation. Marriage or “unlawful coition” between white and Black persons—“that abominable mixture and spurious issue”—was punishable by imprisonment for the white individual and draconian retribution for the enslaved person. White servants who ran away or misbehaved could retain legal counsel and would usually be spared the whip; an enslaved Black man who ran away faced “dismembring, or any other [punishment], not touching his life, as [the owner] in their discretion shall think fit.” While white indentured servants no doubt faced challenging conditions in the New World, they retained legal personhood. Enslaved Africans were chattel—by law, nothing more than the personal possessions of white colonists.

Slaveowners were always anxious, however, that the violence inherent in the system of slavery would become a two-way street—that the enslaved persons they had for so long abused would return those abuses upon them if given the chance. Their fears multiplied as more and more enslaved Africans arrived on the shores of the American colonies. White colonists needed to ensure that they maintained a monopoly on violence; arming themselves and, conversely, disarming slaves was necessary in order to protect that monopoly.

Ironically, it was a measure intended to protect slaveowners that sparked one of the first major slave rebellions in the American colonies. The 1739 Security Act in South Carolina required all white men to attend Sunday church services armed with weapons. An armed populace was the best defense against slave insurrection, but the fact that all the armed slaveowners would be in church on Sunday gave enslaved persons a perfect window to launch their rebellion. On Sunday, September 9, 1739, an enslaved Angolan named Jemmy led a group of 20 enslaved persons to a storehouse near the Stono River, where they killed the shopkeepers and armed themselves with guns and powder from the store. The group burned plantations and attracted new recruits as they marched south, intending to make their way to Spanish Florida, a haven for slaves fleeing to freedom. Their progress was halted near the Edisto River by a hastily raised company of slaveowners serving as a local militia. In the resulting skirmish, the white militia dispersed the enslaved rebels, killing at least 30 of them. The Stono Rebellion is emblematic of the common trajectory of slave rebellions: enslaved Black persons would attempt to arm themselves and organize, only to be dispersed by white militias who were better equipped and prepared.

The Battle of Cowpens, painted by William Ranney, 1845. In Ranney’s depiction, an unidentified Black soldier saves the life of Colonel William Washington. Some Black Americans fought for the Patriots; others joined the British forces in a bid for liberty.

The turmoil brought on by the American Revolution poured gasoline on the smoldering fears of slave rebellion. When the Continental Congress called for states to send their militias to join the main Patriot force gathered outside Boston in 1775, most Southern states abstained; the militia was the primary tool through which slaveowners maintained their monopoly of violence over enslaved persons. They could not afford to give up that advantage.

Besides, there was fighting enough to be done in the South. The British governor of Virginia, John Murray, Earl of Dunmore, attempted to use the deeply held fear of slave rebellion to wrest back control of the wayward colonies. Dunmore’s Proclamation, issued on November 7, 1775, granted freedom to “all indentured Servants, Negroes, or others (appertaining to Rebels)” who would fight for the British Crown. Virginian slaveowners panicked. The Virginia House of Burgesses wrote a frantic letter to Dunmore calling his actions “most diabolical,” and General George Washington—himself a Virginian slaveowner—described Dunmore as “that Arch Traitor to the Rights of Humanity.” Dunmore’s Proclamation failed as a military stratagem—only about 800 enslaved persons made it to his floating fortress in the York River, and those that did were struck down by a smallpox epidemic that ravaged Dunmore’s forces. Still, the sight of armed Black soldiers wearing coats emblazoned with “Liberty to Slaves” struck at the core of Southern security and reinforced the need to protect their peculiar institution at all costs.

The dissonance between the fight for American liberty on the one hand and the preservation of African chattel slavery on the other complicated discussions at the 1787 Constitutional Convention. Central to these disputes was the fear that the new federal government would seek to restrict, limit, or even eradicate the system of slavery from the Southern states. Madison himself noted that “the States were divided into different interests…principally from the effects of their having or not having slaves.” Only a series of ugly agreements in the Constitution, including the Three-Fifths Compromise and the delay in abolishing the Atlantic slave trade, secured the unity of the new republic.

Patrick Henry was famous for his bombastic rhetoric. He used it to argue ferociously for the American Revolution, but also used it to defend the system of slavery. Metropolitan Museum of Art

The compromises only marginally assuaged Southern paranoia. In a speech to the Virginia ratifying convention arguing against the Constitution, firebrand Patrick Henry warned the delegates that the federal government would “take your n****ers from you.” The Constitution created a federalist system of shared power to protect against a tyrannous central government, but in doing so, it gave Southern states a free hand to protect and preserve their own tyrannous system of forced labor.

The Second Amendment and the codification of state militias gave them a way to police it. With the revolutionary ideas of freedom and liberty crisscrossing the Atlantic World with frightening alacrity, Southern state militias were increasingly needed to maintain the established order of white supremacy. In 1791, a slave rebellion engulfed the French colony of Saint-Domingue, resulting in the creation of the first independent Black republic in the Western Hemisphere. The Haitian Revolution created profound shockwaves, particularly among slaveowners in the United States. Their worst nightmares had become shocking realities. Eyewitnesses from Cap Français reported how “heinous Africans, all stained with blood, were replacing murder with excesses, amidst a population without refuge, without clothes, and without food.” As James Monroe warned, the events in Saint-Domingue “must produce an effect on all the people of color in [Virginia] and the States south of us.”

The years following the outbreak of violence in Saint-Domingue were rife with slave rebellions. None were successful. Two successive conspiracies in Point Coupée, Louisiana (at the time a French colony) were put down by local militias. In 1800, an enslaved blacksmith named Gabriel Prosser organized a slave rebellion potentially involving hundreds of enslaved persons in Virginia. Governor James Monroe was late in calling out the militia, but the fickle hand of Mother Nature bailed him out; a rainstorm forced Prosser to delay the uprising by 24 hours. By that time, Monroe had stationed multiple companies of militia outside the Virginian capital of Richmond; Prosser’s freedom fighters were forced to disperse. Eleven years later, enslaved persons on the German Coast plantation in Louisiana (now a US territory) launched the largest slave rebellion in US history. Charles Deslondes, a slave driver of Haitian descent, led a force of some 500 enslaved persons towards New Orleans, only to be turned back by local militia forces augmented by a detachment of federal soldiers. Enslaved persons fighting for freedom were time and again stymied by white militias tasked with using their Second Amendment rights to maintain the existing racial hierarchy in the Antebellum Period.

A wood engraving imagining the moment Nat Turner was apprehended by white authorities—the literal depiction of “bringing a knife to a gunfight.”

More troubling were the frequent cases of white vigilantism, as anxious Southerners used their weapons indiscriminately against enslaved persons they deemed suspicious or threatening. Nat Turner’s Rebellion in 1831 sparked a wave of mass hysteria across Virginia and North Carolina. Led by the messianic Nat Turner, around 50 enslaved persons marched from plantation to plantation, killing at least 55 white individuals. Like so many other enslaved rebels, they were dispersed as soon as they confronted armed white militias. Turner escaped, however, and as word spread about his revolt, Southerners began eyeing all Black individuals with a destructive level of mistrust. In the town of Halifax, a group of white men shot a free Black man at least eight times, fearing he was on his way to join Nat Turner. They then decapitated his corpse and mounted his head on a pole. Other towns frantically begged for more militia members, fearing that the enslaved persons on their plantations would seize the opportunity for vengeance. But against such a well-armed populace with a well-regulated militia, Turner’s Rebellion was doomed to failure. He managed to elude capture for two months before being discovered and arrested. White authorities hanged Nat Turner, then skinned him and beheaded his body, a reminder even in death of the white monopoly on violence.

That monopoly was guaranteed by the Second Amendment. Violence was an inherent part of an enslaved person’s existence, from capture in their homelands in Africa, throughout the Middle Passage, and during their lives under tyranny in the colonies and the United States. White slaveowners passed laws and armed themselves to ensure that the brutality ingrained into the system of slavery was one-sided and that enslaved persons could not return the pain inflicted upon them in kind. The monopoly of violence, buttressed by the right to bear arms, protected slaveowners from the explosive dangers of a slave revolt. It also had the malignant everyday effect of enforcing antebellum racial hierarchy, where white slaveowners had the power to act as they pleased and enslaved Black persons were to remain acquiescent and docile.

But challenges were coming. In Dred Scott v. Sanford (1857), abolitionists believed they had a chance to strike a decisive legal blow against the institution of slavery. Chief Justice Roger Taney shattered those hopes with a verdict declaring that Scott could not sue, as he was an enslaved Black man and thus not a citizen of the United States. Taney—himself from a slaveowning family—painted an apocalyptic picture of what would happen if Black individuals were to become citizens:

It would give [them the right] to go where they pleased at every hour of the day or night without molestation…it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

Taney’s worst nightmare soon became a vivid reality; with the Emancipation Proclamation and the conclusion of the Civil War, Black Americans could no longer be enslaved. The fight for political and social equality, though, had only begun, and a new generation of white supremacists would seek to deny the privileges of the Second Amendment to America’s newest citizens.

Scott Wagner is the supervising editor of INTERZINE.

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