Slavery root of the Second Amendment
What were those guys thinking? Plenty of arguments about our Constitution begin that way. What was the original intention of our founders when they wrote our foundational document?
A veteran Downtown lawyer, Anthony P. Picadio, has a piece in the Pennsylvania Bar Association Quarterly that says “one of the most forceful proponents of originalism,’’ the late U.S. Supreme Court Justice Antonin Scalia, blew the call in his majority opinion that expanded gun rights in 2008.
Justice Scalia’s “conclusion is based on an erroneous reading of colonial history and the drafting history of the Second Amendment,’’ Mr. Picadio wrote. “If the Second Amendment had been understood to have the meaning given to it by Justice Scalia, it would not have been ratified by Virginia and the other slave states.”
The amendment began with the phrase “a well regulated Militia’’ because the Virginian founders wanted to be sure guns didn’t get into the hands of enslaved black Virginians or free black Virginians, Mr. Picadio argues. With the state’s all-white militia, this amendment helped do just that.
On a contentious issue where neither side believes the other truly understands the Bill of Rights, Mr. Picadio has found something that might not satisfy either side. But since his article’s publication a couple of weeks ago, Mr. Picadio said, it’s “gotten a phenomenal response” and even his critics have been unable to punch holes in his argument. He says he’s not antigun but rather “anti-badjudging.” As a longtime deep reader of the founders, he thinks this was “the worst opinion Scalia ever wrote. I’m not taking the position that the result is incorrect,’’ he said. “The analysis is.’’
The result came in a 5-4 decision in the case of District of Columbia v. Heller. The court “for the first time held that the Second Amendment granted an individual right to own and possess a firearm unconnected to service in the militia,” Mr. Picadio wrote. “Even if a right to own a firearm for self-defense purposes preexisted the Bill of Rights, it was not understood by the drafters ... to be included within the Second Amendment.’’
His 11-page piece is mostly stripped of legalese and written in plain English, but it hinges on the comma-heavy amendment that James Madison wrote in a way to win over antiConstitution Virginians led by Patrick Henry. The Second Amendment goes like this:
“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.’’
Until recently, the militia connection was considered a key element. But Justice Scalia dismissed the first half of the Second Amendment as mere preface, declaring only the second half “operative,” when he said it was unconstitutional for Washington D.C. to prohibit possession of an operable handgun in a home.
That reasoning is flat wrong, Mr. Picadio says. Madison tied the right to the militia because he and other slave owners greatly feared “a ruinous slave rebellion in which their families would be slaughtered and their property destroyed.’’ When Virginia ratified the Bill of Rights on Dec. 15, 1791, a successful slave rebellion was roiling what is now Haiti. Virginia had suppressed its own slave rebellions for more than a century.
In pre-Bill of Rights Virginia, white males between 18 and 45 were required to join the militia. “In the southern colonies ‘well regulated militias’ kept slaves in their place,” Mr. Picadio wrote. So Madison revised the Second Amendment to accommodate Patrick Henry, who’d argued at the Virginia Ratifying Convention of 1788 that the Constitution could keep states from suppressing a slave insurrection without congressional approval.
Madison purposely linked the right to bear arms to the militia to keep arms out of the hands of free black Virginians. That evidence was staring Justice Scalia in the face, Mr. Picadio wrote, because in 1776 Thomas Jefferson had submitted a draft constitution for Virginia that said “no freeman shall ever be debarred the use of arms within his own lands or tenements’’ — and it was rejected.
Why? Because “it would have given to free blacks the constitutional right to have firearms,’’ Mr. Picadio wrote. Justice Scalia noted that Jefferson was unsuccessful in his proposal, but made no effort to explain why.
Justice Scalia “was manipulating history to get the result he wanted.’’ The problem with his “original meaning theory of interpretation is that it assumes that there was one commonly understood meaning across the populations of the original states,’’ he wrote. But the militia wasn’t used as a slave patrol in northern states and the amendment had different meanings there. “There is no common ‘original meaning.’ “
Justice Scalia’s opinion only “protects the right to posses a handgun in the house for the original purpose of self-defense.’’ Justice Samuel Alito wrote as much in a later opinion. Since Heller, there have been more than 1,300 Second Amendment cases nationwide and restrictive gun laws of various kinds were upheld in 93 percent of them, Mr. Picadio wrote.
It’s an uncomfortable irony that the more liberal view of gun regulation has links to the efforts of slaveholders. But this nation’s birth did not spring from immaculate conception. “Slavery was kind of under the covers but it was a motivating factor in a lot of this stuff,’’ Mr. Picadio said.
If he were on the Supreme Court, Mr. Picadio said, he’d leave gun questions up to each state. And if he could witness any event in history, he’d like to have seen Patrick Henry, “one of the two or three greatest public speakers to ever set foot on the planet,’’ take on “the greatest brain on the planet,’’ James Madison, in a debate that spanned 25 days in 1788. Had Madison not prevailed, had Virginia rejected the U.S. Constitution, “we would not have a United States of America.’’