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A Response to Noah Shusterman

By on June 28, 2023 Categories: , ,

First, I wish to thank Noah Shusterman for reading Madison’s Militia: The Hidden History of the Second Amendment and writing a thoughtful critique. I am most appreciative.

I also think it’s worth stating at the outset that, as I know from reading his own book about the Second Amendment, Professor Noah Shusterman and I agree more than we disagree. We both believe the Second Amendment was about the militia, for example. For both of us that appears obvious, as the Amendment expressly says it is about the militia. (“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.”) Nevertheless, our agreement on this core point bears mentioning because the Supreme Court now says that “individual self-defense is the ‘central component’ of the Second Amendment right.” (original emphasis)

Why did James Madison and his colleagues in the First Congress, who drafted the Second Amendment and proposed it to the states, want to protect an armed militia with a constitutional provision? Here, too, we agree. We both believe that they had two motivations: longstanding Whig ideology that held that standing armies would lead to tyranny, and a fear of slave insurrections. That is, an armed, well-regulated militia would reduce the need for a standing army; and an armed militia was essential for slave control. We disagree, however, about the relative weight these two considerations had in the minds of the framers. As Professor Shusterman noted, I believe the fear of slave insurrections outweighed “No Standing Army!” ideology by a factor of at least ten to one, while Professor Shusterman assigns greater weight to a desire to avoid a standing army.

My conclusion is based on a simple proposition: People are motivated most by their circumstances, especially when those circumstances are perilous. Thus, to discern what has genuinely motivated people, focus carefully on circumstances and take claims about motives with a grain of salt.

In 1791, when Congress proposed the Second Amendment, the militia excelled at only one thing: slave control.[1] Much of my book is dedicated to proving that claim. I do so by showing how effective the militia was at slave control and how ineffective it proved to be as a military force during the Revolutionary War. In fact, the word ineffective is an understatement. If you read my book, prepare to be shocked. You will learn that the militia’s record during the Revolutionary War was abysmal. Lexington and Concord were the last true militia victories. Time and again, militia threw down their weapons and ran pell-mell from the battlefield. At the Battle of Camden, for example, they fled before firing a single shot despite outnumbering the enemy. In their panic, they tore straight through the ranks of Continental soldiers who were standing steadfast, discombobulating the Continental lines.

At the Battle of Cowpens, General Daniel Morgan devised a way to get some use out of militia. He told them they could withdraw in an orderly fashion after firing just three shots, leaving everything else to the Continentals. It worked to a degree. Most militia fired one or two shots before withdrawing. Later, when advising General Nathanael Greene how to deploy militia in battle, Morgan advised strengthening his protocol by placing Continental soldiers behind the militia with orders to shoot the first militiamen to bolt. Greene did not take that extra step. But at the Battle of Guilford Courthouse, General Edward Stevens did, in fact, station riflemen twenty paces behind the militia line with orders to shoot any man who ran. Unlike Daniel Morgan and Nathanael Greene, who were Continental Army officers, Stevens was a commander of the Virginia militia. He had already witnessed how shamefully his state’s militia performed in battle and told Governor Thomas Jefferson, “militia I plainly see won’t do.”

And anyone who has seen the play Hamilton will remember George Washington, witnessing militia fleeing during the Battle of Kips Bay, throwing down his hat and exclaiming, “Are these the men with which I am to defend America?”

This is not to say that no militia performed honorably; some did. But those were exceptions. By war’s end, the overwhelming consensus was that militia could not stand against professional troops.

But militia were absolutely essential to slave control. Bear in mind that, in eastern Virginia and South Carolina, Black slaves constituted the majority of the population. Even further to the west, Black slaves made up sizable portions of the total population – 44 percent, for example, in the counties where James Madison and Thomas Jefferson lived. Whites lived in constant terror of slave revolts. They relied on the militia to both deter slave revolts and to extinguish revolts when they did occur.

That brings us to the Stono Rebellion. In the very early hours of Sunday, September 9, 1739, about twenty slaves broke into a combined store and warehouse fifteen miles west of Charleston. They killed and decapitated the two White men inside and displayed their heads outside the store for all to see. They had come for guns and ammunition, which they seized. They then marched along Pons Road, beating drums, flying banners, calling out “Liberty!” and exhorting other slaves to join them. Their ranks swelled to somewhere between 60 and 100. Professor Shusterman and I disagree about their ultimate objective. In his book, the chapter about the Stono Rebellion is titled “The Stono Rebels Head for Florida.” In Madison’s Militia, I say that we “can confidently conclude the rebels were not trying to reach freedom in Spanish Florida” but instead intended to kill as many slave masters as possible and then die free. Professor Shusterman accuses me of speculating. I believe I am making an inference. This is not a small point.

For lawyers, the difference between speculation and inference is extremely important. Factfinders such as juries make inferences all the time. In fact, in most cases they must make inferences to reach a verdict. They are, however, prohibited from speculating. An inference is a conclusion that is reasonably based on evidence; speculation occurs when evidence is insufficient to reach a conclusion. Lawyers rigorously think and argue about the dividing line between the two, and judges routinely decide whether evidence supported an inference. Here is some of what I say in Madison’s Militia:

The armed band of slaves marched west on Pons Road. Some speculate they were heading for Spanish Florida. During the preceding year, Spain issued a royal edict promising freedom to escaped slaves who made their way to Florida. But Gracia Real de Santa Teresa de Mose, the northern outpost where Spain established a community of free Blacks, was about 275 miles away. If the slaves’ primary goal was to get there, one assumes they would have moved as quickly and surreptitiously as possible. That was not what they did. On eight occasions, they left Pons Road to invade the homes of plantation owners and other colonists.  …The rebels pillaged the other six the houses, set them ablaze, and killed everyone inside – a body count that totaling than forty slave owners and family members before the day was through. …

Had the Stono rebels harbored some hope – even just a glimmer – that the rebellion would be large enough to repel the inevitable counterattack by the militia and somehow survive? Maybe; desperate people will believe what they must. But in their hearts, they must have known that was unrealistic. Even if the rebellion had become large enough, and well-armed enough, to repel the first assaults, militia would come from further and further away – from all of the South Carolina Low Country, from further-flung areas in western South Carolina, from Georgia and from North Carolina, too, until the rebellion was destroyed. The word of the rebellion would spread among Whites faster than among enslaved Blacks because Whites had horses. And the Whites would show no mercy. All the rebels could reasonably hope for was to kill as many Whites as possible before they themselves died free. The Stono Rebellion was, in short, a suicide mission.

Professor Shusterman may not agree with that conclusion, but I think he is flatly wrong if he thinks it isn’t reasonably based on evidence. When I make important inferences, I make it clear that’s what I’m doing and explain why I believe the evidence supports the inference, as I did above. Even when I make inconsequential inferences, I provide a signal that I am making an inference. That’s why I wrote “the chamber must have fallen deathly still,” rather than “the chamber fell deathly still,” or “Surely, they would have been astounded,” rather than, “They would have been astounded.” (emphasis added)

I do not have the space here to tell you how the militia assembled so quickly and engaged and defeated the Stono rebels by the end of the first day of the insurrection, or how militia prevented insurrections through nightly slave patrols. Nor can I describe how Patrick Henry and George Mason publicly accused James Madison of helping to write a constitution that gave Congress – soon to be controlled by a faster-growing, increasingly abolitionist North – an opportunity to undermine the slave system by disarming the militia. Nor can I describe the political intrigue involving Patrick Henry’s scheme to destroy Madison’s political career, and the political peril that meant for Madison. For that, you need to read Madison’s Militia. But let me make one last point.

There was, indeed, a lot of “No Standing Army!” soapbox rhetoric in eighteenth-century America. But I believe that historians are too credulous when they attach greater weight to that speechifying than to the cold reality that the South lived in constant fear of slave revolts. And Professor Shusterman should really agree with me – for he, himself, is sensitive to how little impact that rhetoric had on both sides of the Atlantic. He describes how pamphleteers promoted the “No Standing Army!” ideology in seventeenth-century England, yet he explains that England has had a standing army ever since 1645 and traces how its standing armies grew over time.[2] He describes how militia were first organized in the American colonies and traces subsequent changes to the militia. Yet, he writes: “For most of the history of Britain’s North American colonies, the militias flourished for practical reasons rather than ideological reasons.”[3] And he makes the same point at least three more times when describing specific decisions regarding the militia.[4] That strikes me as something akin to missing the forest for the trees.  

[1] Militia also protected settlers who were encroaching on American Indian land along the western frontiers, but their record here was mixed.

[2] Noah Shusterman, Armed Citizens: The Road from Ancient Rome to the Second Amendment (2020), at 76, 78, 99, 103, 123, and 153.

[3] Id. at 173-74.

[4] Id. at 97, 124, and 166.