“I believe the Second Amendment was written to ensure states had armed militia to protect themselves,” said Carl T. Bogus, a professor at Roger Williams University School of Law and a prolific writer of scholarly material on Second Amendment history. “The history and wording of the amendment, by James Madison, was to ensure they would remain armed irrespective of what congress wanted to do.”
The professor was generous enough to grant some time on December 8 for an interview to provide expertise on the subject of constitutional law and the history of the ever controversial Second Amendment. A conversation via Skype revealed and explained fascinating truths behind American gun culture.
“Throughout the history of the republic, until about 1960, as a matter of law, the right to bear arms was a collective right and not an individual right,” said Professor Bogus. He explained that the 1963 assassination of President Kennedy as a crucial moment in gun rights history, noting that Lee Harvey Oswald purchased his rifle from a mail-order ad in American Rifleman, an official publication of the National Rifle association. “Afterward,” said Professor Bogus, “there was a fear of significant gun regulation. The NRA was overtaken by right-wing political extremists.”
Of course, this version of history does not compute with the lofty rhetoric commonly used to espouse the right to bear arms as promoted by the NRA. Rather, one hears broad and abstract statements about the how the Second Amendment guarantees a fundamental right that belongs to all Americans. For example, according to the Rhode Island Second Amendment Coalition website,
“… our very liberty is in jeopardy at the hands of misinformed, and/or over zealous anti-gun legislators who don’t understand or respect the systems put in place through the wisdom of our Founding Fathers. Let’s not forget this; without the 2nd Amendment, the entire Constitution is nothing but unenforceable words on paper. The 2nd Amendment is the only thing that separates us from every other country that has confiscated the privately-owned firearms of the public – turning them into ‘subjects’ as opposed to ‘citizens’.”
Relatively new, this interpretation of the language of the second amendment is referred to as “insurrectionist theory,” and has been developed, in no small part, through NRA grant funding. In The Hidden History of the Second Amendment, a 1998 publication in the UC Davis Law Review, Professor Bogus writes that, “insurrectionist theory is premised on the idea that the ultimate purpose of an armed citizenry is to be prepared to fight the government itself.” But, in this self-contradicting concept, the wise framers of the constitution, whose foundation for American democracy is praised for its unique freedoms, expresses enough mistrust to require the need for citizens to arm themselves with sufficient deadly force and vehemently contested regulation to risk unparalleled levels of collateral damage. The Hidden History points out that insurrectionist theory would have one believe that all of the other Constitutional components designed to prevent the abuse of government power are insufficient and the ultimate guarantee of freedom comes from the barrel of a gun.
Well Regulated Slave Patrols
The popular, contemporary association, however, of armed individuals being the thin, lead line standing between liberty tyranny is not supported by the history of the “founding fathers.” Furthermore, it ignores the very language of the amendment:
“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.”
When asked whether individual citizens can be considered the de facto Militia necessary to the security of a free State, Professor Bogus said, “Not according to the framers. Militia is defined in the Constitution. Article 1 Section 8. There was a concern at the Virginia Constitutional Convention by George Mason and Patrick Henry, in 1788, that if congress declared, they could disarm the militia. There was a large dispute over what militia ought to be. There was talk of every white male able body. Madison wrote the second amendment to solve that problem, irrespective of congress.” Professor Bogus is, of course, correct. Notwithstanding the lack of an immutable definition of who actually composes a militia, well regulated or no, the article in the main body of the Constitution gives Congress power over the militia.
And, according to Bogus, at the time, state militias had only one job: controlling slave insurrections.
By the middle of the 18th century, in the South, militias and slave patrols had become synonymous. In Virginia, by the time the delegates convened to debate ratification of the evolving Constitution in 1788, over 40 percent of the population were non-white slaves. For all intents and purposes, the “well regulated militia” was a vast, industrial police system. Therefore, by that logic, the founding fathers’ intent by writing into the document delineating the supreme law of the land language that spoke of an armed militia as necessary to the security of a free state was, in practical terms, to preserve slavery. “Even during the revolution,” said Bogus, “the south refused to commit state militia because of slave insurrections.”
It was not principally Heller
When asked whether the primary shift in contemporary public opinion was the Supreme Court Decision laid out in D.C. vs. Heller, Professor Bogus said, “It was not principally Heller. They (the NRA, the gun manufacturing lobby) sold the view that guns signify freedom and the fear that people may need to go to war with their own government. Heller is the fruit of the long campaign to sell these views. Heller made it the law of the land. The culture here is a greater obstacle.”
To what culture does he refer? Is it the culture that flies the flag of the armed minuteman, but ignores the armed slave owner? Is it the culture that places its trust in the men in government who cry loudest that government cannot be trusted? Is it the culture that creates a campaign to stamp out every single cause of gun violence except for the guns? Or, is it the culture that calls itself the greatest democracy the world has ever seen, but only if the provisions of the doctrine that enable those ideals it holds in such high regard – life, liberty, and the pursuit of happiness – are held at gunpoint?