The Founders' Second Amendment Read online

  The first reference in debate to a lack of a bill of rights consisted in an explanation by Colonel Joseph Bradley Varnum that Congress had only express powers, and thus no bill of rights was necessary.58 General Samuel Thompson was not impressed: “But where is the bill of rights which shall check the power of this Congress; which shall say, Thus far shall ye come, and no farther. The safety of the people depends on a bill of rights.” Not surprisingly, among his other objections to the Constitution was the following: “The great Mr. Pitt says, standing armies are dangerous—keep your militia in order. . . .”59 Another version of this speech had Thompson arguing that “standing armies are a curse—take care of the militia, they are virtuous men. . . .”60

  James Bowdoin, a radical during the Revolution who as governor in 1786 had suppressed Shays’ Rebellion, shot back: “With the rights of particular states, or private citizens, not being the object or subject of the Constitution, they are only incidentally mentioned.” The former “would require a volume to describe,” and the latter would be improper to list.61

  Theophilus Parsons, who wanted no bill of rights either, asked: “Is there a single natural right we enjoy, uncontrolled by our own legislature that Congress can infringe? Not one.”62 He also posed jury nullification as a method of preventing oppression:

  But, sir, the people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his own fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him. . . .63

  Theodore Sedgwick queried whether “an army could be raised for the purpose of enslaving themselves and their brethren? Or, if raised, whether they could subdue a nation of freemen, who know how to prize liberty; and who have arms in their hands?”64 Similarly, outside the convention hall “The Yeomanry of Massachusetts” argued in the Massachusetts Gazette that should those who come to power attempt “to deprive the people of their liberties,” then “the people may, and will rise to arms and prevent it. . . .”65

  Meanwhile, Governor John Hancock proposed amendments to the Constitution, although none concerned substantive rights. Its first article was the declaration “that all powers not expressly delegated to Congress, are reserved to the several States, to be by them exercised.”66 Various structural amendments, along with the right to trial by jury in civil cases, followed. The convention would ultimately recommend passage of these amendments.

  Anxious to open the door to guarantees of substantive rights, Samuel Adams suggested that conditional amendments now would be better than relying on uncertain amendments in the future and moved the passage of the Hancock proposals.67 Adams called Hancock’s above first article as “a summary of a bill of rights.”68 But Adams was only getting warmed up for his declaration of individual rights.

  Samuel Nasson then picked up the gauntlet, making “a short apostrophe to Liberty. . . . I cannot, sir, see this brightest of jewels tarnished—a jewel worth ten thousand worlds; and shall we part with it so soon?”69 Among other defects, “let us consider the Constitution without a bill of rights. When I give up any of my natural rights, it is for the security of the rest; but here is not one right secured, although many are neglected.”70

  Nasson recalled the Boston Massacre, warning that standing armies “are too frequently used for no other purpose than dragooning the people into slavery. . . .” He continued:

  What occasion have we for standing armies? We fear no foe. If one should come upon us, we have a militia, which is our bulwark. Let Lexington witness that we have the means of defence among ourselves. If, during the last winter, there was not much alacrity shown by the militia in turning out, we must consider that they were going to fight their countrymen.71

  The militia had indeed been reluctant to suppress Shays’ Rebellion, for “against deluded, infatuated men they did not wish to exert their valour or their strength.” Had the British invaded, it would have been a different story.72

  On February 5, Dr. John Taylor ridiculed the suggestion “that, had the Constitution been so predicated as to require a bill of rights to be annexed to it, it would have been the work of a year, and could not be contained but in volumes.” To the contrary, “any gentleman in that Convention could form one in a few hours. . . .”73

  Theophilus Parsons argued the impracticability of “a bill, in a national constitution, for securing individual rights,” noting that “no power was given to Congress to infringe on any one of the natural rights of the people by this Constitution; and, should they attempt it without constitutional authority, the act would be a nullity, and could not be enforced.”74

  At that point Gilbert Dench moved that the convention adjourn to a future date to give the delegates an opportunity to confer with their constituents. The motion lost by a vote of 329 to 115.75

  In addition to a bill to secure individual rights, amendments to the structure of government were sought. On the same day as the above debate, an address to the convention by “Agrippa XVI” published in the Massachusetts Gazette proposed the structural amendments that “Each state shall have the command of its own militia,” and that “No continental army shall come within the limits of any state, other than garrison to guard the publick stores, without the consent of such states in time of peace.”76

  The next day—February 6—Samuel Adams moved to add to the above first article of John Hancock’s proposed amendments the following substantive rights:

  And that the said Constitution be never construed to authorise Congress, to infringe the just liberty of the press, or the rights of conscience; or 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; or to prevent the people from petitioning in a peaceable and orderly manner, the federal legislature, for a redress of grievances; or to subject the people to unreasonable searches & seizures of their persons, papers, or possessions.77

  Adams’ proposals would find expression in the First, Second, and Fourth Amendments to the federal Constitution. Adams had been a prolific proponent in the pre-Revolutionary era of individual rights in general and the right to keep and bear arms in particular. The above declaration stressed the “keeping” of arms, a favorite theme of Bostonians who experienced the most dramatic arms seizures by the British before the Revolution. However, the right to keep arms extended only to “peaceable citizens,” not to criminals. Adams proposed only a bill of personal rights, and—other than the restriction on standing armies—did not propose structural amendments, such as clarifying state powers over the militia. The mention of standing armies in the same sentence as the right to keep arms did not detract from the individual character of that right.

  A contemporary account described the fate of Adams’ proposals as follows: “The Hon. Mr. Adams, introduced some amendments, to be added to those reported by the Committee—but they not meeting the approbation of those gentlemen whose minds they were intended to ease, after they were debated a considerable time, the Hon. Gentleman withdrew them.”78

  Adams’ motion agitated the federalists, who wanted the unconditional ratification of the Constitution with no bill of rights. Federalist and Congregational Pastor Jeremy Belknap wrote in his diary:

  S Adams offered some additional amendments to secure (the) Rights of Consc[ience]—Liberty of [the] Press—Right to keep Arms—Protection of Persons & Property from Seizure &c—wh[ich] gave an alarm to both Parties—the Antifeds supposed [that] so great a Politician would not offer these amendments unless he tho’t there was danger on these Points—[the] Feds were afraid [that] new Converts would desert—A[dams] perceived [the] mischief & withdrew his Proposal—another renewed it—but it was voted out & A[dams] himself was obliged to
vote agt it.79

  Four days later, Belknap wrote to Ebenezer Hazard—who, as postmaster general, had been accused by antifederalists of interrupting their mail—with a further partisan description of Adams’ motion:

  S Adams had almost overset the apple-cart by intruding an amendment of his own fabrication on ye morng of the day of ratification—it was to this purpose “That Congress should not infringe the Rights of Conscience, the Liberty of the Press, the right of peaceable citizens to bear arms, nor suffer unwarrantable seizure of persons, papers nor property &c” Feds & Antis were alarmed—the former because they saw the fatal Tendencey of creating such apprehensions as immediately appeared in the latter, Some of whom said that such a Man as Mr. A would not have guarded against these Evils if he had not seen a foundation for them in ye Constitution—When A perceived the mischief he had made he withdrew his motion, but some of the anti leaders revived it—& he was obliged finally to vote against it—it was thrown out by a very general Vote, but it is apprehended this manoeuvre lost the Constitution several Votes—Some suspect his Intention was to overset the whole, but “Charity hopeth all things” & I am seriously of the mind that it rather proceeded from a vanity of increasing his own popularity as Hancock had his by the midwifing the other amendments into ye World—Had it not been for this step the whole exertion had been in vain; A has made himself unpopular.80

  Belknap’s paraphrasing of the proposals is revealing. Adams proposed that the Constitution could not be “construed to authorise Congress . . . to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” Belknap summarized this to read: “That Congress should not infringe . . . the right of peaceable citizens to bear arms. . . .” What became the Second Amendment would also use the term “infringe” and would refer to the right to “bear arms” as well as to keep them. This exemplifies the conceptual similarity between the two renditions.

  The ad hominem character of Belknap’s above account is evident. Allegedly out of vanity, Adams sought a bill of rights. Belknap’s following further description indicates that Adams’ proposals enjoyed considerable support—by obstructionists, of course—but that the federalists were able to use procedural tactics to cause the vote on the Constitution to be taken when they were sure of victory:

  Some of the Delegates from Maine were converted, but I believe not a greater Proportion of them than of the other Counties—there were near 100 in all—Some of ye most virulent Opposers were Mainites viz Nason, Wedgery & Saml Thompson. . . .

  The Antis would have had the Question called much sooner but the fed’s protracted the debates on paragraphs till they were sure of a Majority. . . .81

  The vote on ratification of the Constitution without amendments was close—187 in favor and 168 opposed.82 The resolution of ratification recommended passage of Hancock’s proposed amendments,83 but they included no substantive rights. It bears emphasis that the federalists were not opposed to the personal rights declared in Samuel Adams’ draft—to the contrary, they argued that Congress had no power over such subjects.

  Firearms ownership at that time was taken for granted. When the convention ratified the Constitution, the mass celebrations in Boston included the following:

  In a cart, drawn by five horses, the British flag was displayed, and insulted by numbers placed in the cart, armed with muskets, who repeatedly discharged the contents of them through the tattered remnant, in contempt of that faithless nation, whose exertions have been unremitted since the peace, to cramp our commerce and obstruct all our nautical proceedings.84

  One man objected not on the basis that the firing was unsafe, but to the content of the speech: “the Bostonians have acted very imprudently in Carrying the King of Englands Coulors in a Cart pulld with five Horses, armed with muskets and fireing through the same with Great Indecent Speches about England and &c.”85

  The gun firing must have been widespread. Jeremy Belknap wrote in his diary: “Then for 2 or 3 Days ye Town was over head & Ears in joy—Bells—Drums—Guns—Procession &c.”86 Belknap then returned to the subject of proposals for a bill of rights, which he saw as a conspiracy between antifederalists of different states:

  It was matter of speculation how Mr. Adams came to propose such amendments—many suspicions were formed & some thos’t he meant to overthrow ye Constitution.—Certainly it was ye worst blow which had been given to it—In a Week or two afterward came along a protest of ye Pennsylva minority—in wh[ich] these very things are objected to ye Constitution wh[ich] he proposed to guard against by his motion—

  It is sd. ye Copies of these Protests were purposely detained on ye Road—but it is supposed A[dams] had a Copy in a Letter before ye Convention was dissolved—

  An attempt was made by the antifeds in Pennsylva to thow an Odium on ye Post officers for detaing these & other papers.—but in fact the Office has nothing to do with them.87

  The bill of rights proposed by the Pennsylvania Dissent of Minority had been circulated in Boston when the Massachusetts convention met. The antifederalists accused postal authorities of interfering with their mailings. In the above passage, Belknap sought to disprove these allegations based on the avowal that Adams had received communications from the Pennsylvania minority. Whatever the true facts, it was hardly a secret that antifederalists—like federalists—worked together on a nationwide basis. As Belknap continued:

  A in ye Course of debate in Conventn. sd but little—what he sd was rather in favour of the Constituon—when it came to ye last pinch his introduced Amendments had well-nigh overset it.

  When he perceived ye uneasiness in ye minds of both parties—he withdrew his Motion—one of the antifeds revived it—Adams he Opposed it—Sd he shd vote agt it & actually did so—but it is tho’t his Manoe[u]vre lost sevl Votes for ye Constn.—it is sd C] was with him 3 Evengs previous—pwersuadg him not to make ye Motion but could not prevail.88

  The above private musings of Jeremy Belknap are significant because virtually no other records exist with such details about the attempt in the Massachusetts convention to require a federal bill of rights. Even after the Constitution was ratified and James Madison introduced the Bill of Rights in the Congress, the stubborn Belknap continued to attack Adams and to oppose a bill of rights.89 Others viewed Madison’s proposals as having vindicated Adams’ role the previous year. A writer explained in the Boston Independent Chronicle:

  It may well be remembered, that the following “amendments” to the new constitution of these United States, were introduced to the convention of this commonwealth by its present Lieutenant-Governour, that venerable patriot SAMUEL ADAMS.—It was his misfortune to have been misconceived, and the proposition was accordingly withdrawn—le[a]st the business of the convention (the session of which was then drawing to a period) might be unexpectedly protracted. His enemies triumphed exceedingly, and asserted to represent his proposal as not only an artful attempt to prevent the constitution being adopted in this state but as an unnecessary and improper alteration of a system, which did not admit of improvements. To the honour of this gentleman’s penetration, and of his just way of thinking on this important subject, every one of the intended alterations but one [i.e., proscription of standing armies] have been already reported by the committee of the House of Representatives, and most probably will be adopted by the federal legislature. In justice therefore for that long tried Republican, and his numerous friends, you gentlemen, are requested to republish his intended alterations, in the same paper, that exhibits to the public, the amendments which the committee have adopted, in order that they may be compared together.90

  The writer proceeded to quote Adams’ proposals that Congress could not prevent a free press, the keeping of arms by peaceable citizens, or petitioning for redress of grievances, nor could it conduct unreasonable searches and seizures. Adams’ proposals would come to life after all.

  MARYLAND

  Luther Martin’s “Letter on the Constitution,” which was delivered to
the Maryland legislature in early 1788, became a major antifederalist tract. Martin had served in the constitutional convention in Philadelphia. Among his many objections was that the proposed government was given power “to increase and keep up a standing army as numerous as it would wish, and, by placing the militia under its power, enable it to leave the militia totally unorganised, undisciplined, and even to disarm them.”91 This was contrary to the principle that the armed citizenry should be able to check oppression: “By the principles of the American revolution, arbitrary power may, and ought to, be resisted even by arms, if necessary.”92

  Records on the Maryland constitutional convention are sparse, partly because the Constitution’s supporters knew they had a majority and refused to debate. Opponents were allowed to speak, but members of the majority simply remained mum. The majority then voted to ratify the Constitution on April 28, 1788, without proposing any amendments.93

  After doing so, a committee was appointed to consider possible amendments. Three of the committee members had been members of the committee that had drafted the Maryland Declaration of Rights of 1776,94 but they were apparently now in the minority. While the 1788 committee would not recommend a bill of rights, it drafted several amendments concerning the structure of government, the first of which was “that Congress shall exercise no power but what it expressly delegated by this Constitution.”95