The committee also proposed that the militia shall not be subject to martial law in peacetime, “for all other provisions in favour of the rights of men would be vain and nugatory, if the power of subjecting all men, able to bear arms, to martial law at any moment should remain vested in Congress.”96 However, the committee rejected proposals against standing armies and a national religion.97 Despite the above tentative proposals, the committee ultimately determined not to report any proposed amendments at all.98
SOUTH CAROLINA
South Carolina was the next state to ratify—it did so on May 23. While records of the South Carolina convention are meager, records exist of the debates of the legislative session in mid-January, which considered whether to call a convention. The antifederalist case was made by James Lincoln as follows :
What is liberty? The power of governing yourselves. If you adopt this Constitution, have you rhis power? No: you give it into the hands of a set of men who live one thousand miles distant from you.99
Among other defects, Lincoln asked: “Why was not this Constitution ushered in with the bill of rights? . . . Perhaps this same President and Senate would, by and by, declare them. He much feared they would.”100
The objection was met by Charles Cotesworth Pinckney, a leading player in framing the South Carolina Constitution of 1776 as well as a prominent delegate to the Philadelphia convention of 1787. The Constitution lacked a bill of rights, “for, as we might perhaps have omitted the enumeration of some of our rights, it might hereafter be said we had delegated to the general government a power to take away such of our rights as we had not enumerated; but by delegating express powers, we certainly reserve to ourselves every power and right not mentioned in the Constitution.”101 Lack of a bill of rights did not imply that a free press and bearing arms were not protected rights.
But Pinckney also gave another, sinister reason why no bill of rights was inserted: “Such bills generally begin with declaring that all men are by nature born free. Now, we should make that declaration with a very bad grace, when a large part of our property consists in men who are actually born slaves.”102
The South Carolina legislature voted to call a constitutional convention on May 12. Only a few of the speeches are extant. Charles Pinckney, who had also been a delegate to the Philadelphia convention, averred that among the major European states, only Great Britain “confirms to its citizens their civil liberties, or provides for the security of private rights,” although it violated religious liberty. “The rest of Europe affords a melancholy picture of the depravity of human nature, and of the total subversion of those rights. . . .”103 But the “sense of liberty, and of the rights of mankind,” was spreading to Europe, and thus “let it be our prayer that the effects of the revolution may never cease to operate until they have unshackled all the nations that have firmness to resist the fetters of despotism.”104
The antifederalists also laid claim to the Revolutionary heritage. Patrick Dollard stated about his constituents:
In the late bloody contest, they bore a conspicuous part, when they fought, bled, and conquered, in defence of their civil rights and privileges, which they expected to transmit untainted to their posterity. They are nearly all, to a man, opposed to this new Constitution, because, they say they have omitted to insert a bill of rights therein, ascertaining and fundamentally establishing, the unalienable rights of men, without a full, free, and secure enjoyment of which there can be no liberty. . . .105
Dollard denounced the despotic principle of “non-resistance,” predicted that the people would not accept the new government “unless compelled by force of arms, which this new Constitution plainly threatens; and then, they say, your standing army, like Turkish janizaries enforcing despotic laws, must ram it down their throats with the points of bayonets.”106
Inflammatory rhetoric aside, the call for a bill of rights fell on deaf ears, and two-thirds of the delegates voted to ratify the Constitution without proposing amendments.107 But the supporters of a bill of rights would soon get the last word.
Thus far, federalists successfully led the respective conventions to ratify the Constitution without any formal demand for amendments. That would now end. Henceforth, the antifederalists would persuade convention majorities to propose both bills of rights and structural amendments.
NEW HAMPSHIRE
New Hampshire would distinguish itself in the process of constitutional ratification in a twofold sense. First, it was the ninth state to ratify the Constitution, thereby making the Constitution effective. Second, it was the first state formally to demand a bill of rights.
The first session of the New Hampshire convention contained an antifederalist majority, and the federalists maneuvered an adjournment so the convention would not reject the Constitution.108 At the second session of the convention, on June 21, 1788, a committee of fifteen was appointed to consider amendments. The eight federalists on this committee were led by convention president John Sullivan; the seven antifederalists were led by Joshua Atherton.109
The proposed amendments were apparently already drafted, because they were reported back to the convention the same day. The amendments began: “That it be explicitly declared that all powers not expressly and particularly delegated by the aforesaid Constitution are reserved to the several states, to be by them exercised.”110 There followed some recommended changes to the structure of the government and then three individual rights:
10th. That no standing army shall be kept up in time of peace, unless with the consent of three fourths of the members of each branch of Congress; nor shall soldiers in a time of peace, be quartered upon private houses without the consent of the owners.
11th. Congress shall make no laws touching religion or to infringe the rights of conscience.
12th. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.111
Freedom of religion and conscience, possession of arms, and no non-consensual peacetime quartering of soldiers in private houses would be reflected in the First, Second, and Third Amendments. The prohibitions on Congress would be absolute—“Congress shall make no laws” touching religion or conscience and “shall never disarm any citizen.”
The qualification that “actual” insurgents could be disarmed was proposed with recent events in mind. In September 1786, during agitation for abolition of debts and after passage of an act allowing former Tories to return to their estates, two hundred “rioters” with fifty muskets demonstrated at the General Court in Exeter, New Hampshire. Two thousand militiamen turned out to disperse them.112 Shays’ Rebellion followed immediately in Massachusetts.
The proposal that Congress could not disarm “any citizen” except those in rebellion made clear that the right to keep and bear arms was not limited to the able-bodied male population that constituted the militia.113
Having reached an agreement over amendments, one critical difference remained. Antifederalist leader Atherton moved that the convention ratify the Constitution subject to the condition that it not be operable in New Hampshire without ratification of the amendments.114 The federalists moved unconditionally to ratify the Constitution and to recommend the amendments to Congress.115 The convention then voted 57 to 47 to ratify.116 New Hampshire’s ratification made the Constitution effective.
The arms guarantees proposed by New Hampshire and the Pennsylvania minority were discussed in a broader critique of proposals by state conventions. Entitled “Remarks on the Amendments to the Federal Constitutions,” the Reverend Nicholas Collin of Philadelphia, writing under the pen name “A Foreign Spectator” (from Sweden), opposed any amendment. If the Constitution contained “a scrupulous enumeration of all the rights of the states and individuals, it would make a larger volume than the Bible. . . .”117 Further, an army was no danger “especially when I am well armed myself.” “While the people have property, arms in their hands, and only a spark of noble spirit, the most corrupt Congress must be mad to form any project of tyra
nny.”118
Collin further held that “a good militia is the natural, easy, powerful and honorable defence of a country.”119 Identifying “a citizen, as a militia man,” he referred to “that noble art, by which you can defend your life, liberty and property; your parents, wife and children!”120
Collin then considered “those amendments which particularly concern several personal rights and liberties.”121 Attacking a proposal that the privilege of habeas corpus should not be suspended for more than six months, he supported his position by referring to two of the proposed arms guarantees:
What is said on this matter, is a sufficient reply to the 12th amend. of the New-Hampshire convention, that congress shall never disarm any citizen, unless such as are or have been in actual rebellion. If, by the acknowledged necessity of suspending the privilege of habeas corpus, a suspected person may be secured, he may much more be disarmed. In such unhappy times it may be very expedient to disarm those, who cannot conveniently be guarded, or whose conduct has been less obnoxious. Indeed to prevent by such a gentle measure, crimes and misery, is at once justice to the nation, and mercy to deluded wretches, who may otherwise, by the instigation of a dark and bloody ringleader, commit many horrid murders, for which they must suffer digan punishments.
The minority of Pennsylvania seems ro have been desirous of limiting the federal power in these cases; bur their conviction of irs necessity appears by those very pans of the 3rd and 7th amendments framed in this view, ro wit, that no man be deprived of his liberty except by the law of the land, or the judgment of his peers—and that no law shall be passed for disarming the people, or any of them, unless for crimes committed, or real danger of public injury from individuals. The occasional suspension of the above privilege [of habeas corpus] becomes pro tempore the law of the land, and by virtue of it dangerous persons are secured. Insurrections against the federal government are undoubtedly real dangers of public injury, nor only from individuals, bur great bodies; consequendy the laws of the union should be competent for the disarming of borh.122
This is the only discussion in the ratification period of the limited power of Congress to disarm any person or group under the two proposed amendments. Since persons involved in an insurrection could be arrested, Collin reasoned, they could certainly also be disarmed. There is no hint in Collin’s discussion that Congress could pass any law restricting firearms ownership by law-abiding citizens. However, he did oppose amendments to the Constitution, including guarantees of a free press and jury trial, prohibitions on general warrants and cruel and unusual punishment, and all other proposals.123
In 1789, the federalists won the congressional elections in New Hampshire, in part by championing adoption of a federal bill of rights that had been demanded by several states. Antifederalist Joshua Atherton wrote: “To carry on the farce the Federalists have taken the liberty to step onto the ground of their opponents, and, clothing themselves with their armour, talk high of amendments. . . . New York, Virginia, and other states having gone so fully into the detail of amendments, the strokes of abler hands ha[ve] rendered the lines of my feeble pen unnecessary.”124 This suggests that Atherton may have authored the Bill of Rights proposals adopted by the New Hampshire convention.
Insistence on a bill of rights—which mustered the votes only of minorities in the Pennsylvania and Massachusetts conventions—finally commanded a majority in the New Hampshire convention. Momentum in favor of a declaration of individual liberties now escalated, as all eyes focused on Virginia.
CHAPTER 10
Virginia Tips the Scales
IN AN ESSAY“To the Citizens of Virginia,” Alexander White replied to the Pennsylvania Dissent of Minority. White was running in the election for delegates to the Virginia ratifying convention, and would be elected.1 He depicted the objections of the Pennsylvania minority as bordering on the dishonest:
There are other things so clearly out of the power of Congress, that the bare recital of them is sufficient, I mean the“rights of conscience, or religious liberty—the rights of bearing arms for defence, or for killing game—the liberty of fowling, hunting and fishing. . . .” These things seem to have been inserted among their objections, merely to induce the ignorant to believe that Congress would have a power over such objects and to infer from their being refused a place in the Constitution, their intention to exercise that power to the oppression of the people.2
White then repeated the federalist dogma that a bill of rights would be dangerous, because it would suggest that Congress had power over any subject not explicitly guaranteed:“But if they had been admitted as reservations out of the powers granted to Congress, it would have opened a large field indeed for legal construction: I know not an object of legislation which by a parity of reason, might not be fairly determined within the jurisdiction of Congress.”3
Nonetheless, White recognized that abuse of a right could be penalized: “The freedom of speech and of the press, are likewise out of the jurisdiction of Congress.—But, if by an abuse of that freedom I attempt to excite sedition in the Commonwealth, I may be punished. . . .”4 Similarly, Congress had no power over bearing arms for defense or hunting but could punish armed sedition.
But supporters of a bill of rights could hardly be regarded as crackpots. Thomas Jefferson wrote to James Madison from Paris on December 20, 1787, approving of some parts of the Constitution but adding what he disliked: “First the omission of a bill of rights providing clearly & without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies. . . . A bill of rights is what the people are entitled to against every government on earth, general or particular, & what no just government should refuse, or rest on inference.”5
Many others were beating the same drum. Joseph Spencer sent Madison a copy of John Leland’s“Objections to the Constitution,” which began:“There is no Bill Rights, whenever a Number of men enter into a State of Society, a Number of individual Rights must be given up to Society, but there should always be a memorial of those not surrendered. . . .”6 Madison would meet with Leland and win him over to the federalist cause.7
The Virginia convention was preceded by a great deal of debate in the public forum. “A Native of Virginia” asked in an April 2, 1788, publication: “What is a Bill of Rights? A declaration insisted on by a free people, and recognised by their rulers, that certain principles shall be the invariable rules of their administration. . . .”8
“Cassius II” in the April 9 Virginia Independent Chronicle replied to a published letter from Richard Henry Lee to Edmund Randolph as follows:
“There is no restraint,” you say,“in form of a bill of rights to secure (what Doctor Blackstone calls) that residuum of human rights, which is not intended to be given up to society, and, which is, not indeed, necessary to be given up for any social purpose. The rights of conscience, the freedom of the press, and the trial by jury are at mercy.” . . . You certainly, must know, sir, that bills of rights are only necessary in those governments, in which there is a claim of power independent of, and not derived from, the people; such as the divine and hereditary right claimed by Kings.9
The Society of Western Gentlemen proposed revisions to the Constitution in the April 30 Virginia Independent Chronicle. In addition to a free press, it would have declared:“The people have a right to keep and bear arms, for the national defence; standing armies in time of peace are dangerous to liberty, therefore the military shall be subordinate to the civil power.” A separate provision would have made bearing arms a duty:“The community have a right to require of every individual his personal services when necessary for the common defence. . . .”10
James Monroe, in “Some Observations on the Constitution,” wrote on May 25 that “fundamental principles form a check, even when the spirit of the times hath changed, indeed they retard and controul it.” Examples included trial by jury and freedom of conscience and the press. He added concerning the militia:
Let them regulate th
e disciplining and training of the militia—the calling them forth and commanding them in service; for the militia of a country, is its only safe and proper defence. . . . [T]he greater the authority of Congress over the respectable body of men, in whose hands every thing would be safe, the less necessity there would be to have recourse to that bane of all societies, the destroyer of the rights of men, a standing army.11
George Mason wrote to Thomas Jefferson on May 26, complaining about the “Compromise between the Eastern, & the two Southern States, to permit the latter to continue the Importation of Slaves for twenty odd Years; a more favourite Object with them, than the Liberty and Happiness of the People.” He continued:
There are many other things very objectionable in the proposed new Constitution; particularly the almost unlimited Authority over the Militia of the several States; whereby, under Colour of regulating, they may disarm or render useless the Militia, the more easily to govern by a standing Army; or they may harass the Militia, by such rigid Regulations, and intolerable Burdens, as to make the People themselves desire its Abolition.12
Richard Henry Lee wrote to Edmund Pendleton the same day of the need for a declaration “to regulate the discretion of Rulers in a legal way, restraining the progress of Ambition & Avarice within just bounds.13
Lee’s antifederalist colleagues in Virginia, Patrick Henry and George Mason, would effectively argue the above positions in that state’s ratifying convention. The result would be an irresistible push for what became the Second Amendment and the rest of the Bill of Rights. They would not ultimately succeed, however, in adopting any structural changes, such as on state-federal powers over the militia.
The Founders' Second Amendment Page 27
