Slavery, Militias, and Methodologies: Thoughts on Carl Bogus's Madison's Militia

Carl Bogus's 1998 "The Hidden History of the Second Amendment" was one of the first articles to bring slavery into the heart of Second Amendment scholarship. Bogus argued there that a need “to assure the Southern states that Congress would not undermine the slave system by using its newly acquired constitutional authority over the militia to disarm the state militia and thereby destroy the South’s principal instrument of slave control” was the Second Amendment's “hidden” purpose. Madison's Militia: The Hidden History of the Second Amendment is a book-length version of that argument.  "My thesis," Bogus writes, "is that, in the main, Madison drafted the Second Amendment to ensure that Congress could not disarm the militia and thereby undermine the slave system in the South."

The argument is worth engaging, though Bogus takes it farther than I would. Eighteenth-century militias were better at policing the enslaved population than they were at other tasks, slavery was the central institution of at least four of the original 13 colonies, and the generation of politicians who wrote "three fifths of all other persons" knew how to make laws that protected slavery without directly saying so.

The question that Madison's Militia brings up, though, is just how far to take slavery as an explanation for the Second Amendment. Even if we view militias as an instrument of white supremacy, which they were; and see "calling forth the militia to… supress Insurrections" as a reference to slave revolts, which it was; does it necessarily follow that the Second Amendment was included in the Bill of Rights primarily in order to protect slavery?

Exploring these questions is different from asking how slavery's role in the amendment should influence judicial rulings. “Although I am a lawyer, this book is about history, not law," Bogus writes, adding that "I shall try to present history as it should be presented: focusing on people and the circumstances that caused them to think and act as they did." That's good. As I argued in my own book on the topic, Second Amendment scholarship, especially research about its origins, should not be limited to legal history. Nor should every history of the amendment aim at guiding future court rulings. But, Second Thoughts readers, please note: this is a lawyer’s book. Though Bogus's interpretation of the Second Amendment is more plausible than Scalia's, Madison's Militia is as much law-office-history as Heller (though, thankfully, less so than Bruen).

Some of the lawyerly aspects are innocuous, like Bogus's discussion of the relative merits of direct and circumstantial evidence. At one point, he analyzes one Virginia Ratifying Convention speech in terms of things “good trial lawyers” do and criticizes another as the kind of "sloppy arguments" which "might work with some jurors.” His claim that, "if we had to assign relative values to these two motives for protecting an armed militia, the slave-control motive would outweigh the “No Standing Army!” motive by a factor of at least ten to one," reads like an argument for proportionate fault. And, at least to this historian's ear, his writing style sometimes just… sounds lawyerly. (“Did the [1689] Declaration of Rights in any way restrict Parliament’s ability to regulate gun laws? It did not.”)

These aren't things historians would write, but they're fine. Endearing, even. Bogus’s legal training comes out in more problematic ways in his willingness to ascribe motives to historical actors or imagine how people "must have" reacted to certain situations. Every historian speculates; few do it as often and openly as Bogus, who fills the book with lines like "the chamber must have fallen deathly still," "Madison must have found it galling," or, in the final line, "Surely, they would have been astounded."

This approach is not always innocuous. In his discussion of the Stono Rebellion, Bogus writes:

We can confidently conclude the rebels were not trying to reach freedom in Spanish Florida because they did not try to conceal their whereabouts… their only realistic goal was to kill as many slave masters as possible and then die free. We can reasonably infer that was the real goal of the Stono rebels.

While the book's overall argument doesn't rest on Bogus's interpretation of Stono, his approach here is telling. We don't have to "confidently conclude" or "reasonably infer"—we only have to read Thornton's "African Dimensions of the Stono Rebellion," where he shows that the rebels were Congolese-born, battle-hardened men—and probably Catholic. They fought like Congolese soldiers, seizing weapons and killing enemies, yes, but also drumming and dancing in order to gather people to their cause before heading to freedom in Spanish (and Catholic) Florida. When evidence is lacking, reasonably inferring has its place but, as historical analysis, relying upon the traditions, rituals, and intellectual and cultural frameworks that shaped people's behaviors and their understanding of the world is better. The fear of standing armies was one such framework—one I'll get to below.

Beyond that, this is a lawyer’s book because Bogus establishes an argument with two sides, then sets out to prove one correct and the other false. The argument might be stated: given that the Second Amendment was not included in the Bill of Rights in order to protect an individual right to bear arms, it must therefore have been included either out of fear of standing armies or to protect slavery; because slavery was more important to the framers than the fear of standing armies, its authors—Madison especially—included the amendment to protect slavery.

This interpretation has a certain plausibility. Looked at from today, fearing standing armies doesn't have the salience it once did. Meanwhile, you don't need to sympathize with enslavers to understand why fears of slave revolts would have shaped their actions. Still, Bogus spends much of Madison's Militia proving that this fear motivated the framers, mostly through an analysis of Virginia's ratification debates (chapters 1-3).

Bogus also spends two chapters (5-6) discrediting "professional historians'" argument that "the Second Amendment was all about protecting armed militia in order to avoid the necessity of having a standing army.” His main criticism is that militias fared poorly in the Revolutionary War. It's a valid point, though less valid than Bogus realizes. The fears were of a peacetime army. Relatively few politicians opposed raising a full-time army in 1775; the assumption was that the army would disband after the war, which, for the most part, it did (for more background, see James Martin and Mark Lender’s A Respectable Army: The Military Origins of the Republic, 1763 – 1789, specifically Chapter 3). Still, the most ardent militia supporters had long argued for the bravery of citizen-soldiers fighting to protect their homes and families, and that had not proved true.

In other ways, though, the experiences of 1770-1787 had confirmed Americans' fears about professional soldiers. Pre-existing critiques of standing armies had provided an intellectual framework that helped shape colonists' understanding of the world, making England's decision to station soldiers in Boston, and the use of German mercenaries, appear as signs of England's tyranny. Having complained about these crimes on the part of London's government, the men who led the United States felt themselves at least somewhat compelled to rule differently once they had a chance. (Here, it's worth pairing the Declaration of Independence and the Bill of Rights. Just as Jefferson's complaint of the British "quartering large bodies of troops among us" fed into the Third Amendment, his complaints of "standing armies without the consent of our legislatures" and "large armies of foreign mercenaries" fed into the Second Amendment).

There was also a widespread understanding among the founding generation's leaders that maintaining civil control over military authorities would be a challenge. This, too, was in the Declaration: the king had "affected to render the military independent of, and superior to, the civil power." This concern also animated many state Bills of Rights, notably Virginia's, which not only called for a "well regulated militia" but in that article declared that "the military should be under strict subordination to, and be governed by, the civil power."

It's worth noting here that maintaining civil control over military authorities is a major challenge for any government, especially a new one. Relying on a militia was, among other things, a means to that end. Even in 1783, before the Continental Army had fully disbanded, Washington—critic of militias—had to warn the soldiers of the Newburgh Conspiracy that they were "plotting the ruin" of both the army and the nation by "sowing the seeds of discord & seperation between the Civil & Military power."

Large standing armies were considered especially likely to escape civil control. And while Bogus is right to discount some of the militia advocates' unrealistic claims, the possibility of a standing army destroying the United States during its early years was not implausible, especially given the perception of republics' fragility. Suppose that, during Washington's and Adam's presidencies, the government had grown the army; then Adams, following a close loss to Jefferson in the 1800 election, refused to concede and used the army to stay in power; would the republic have survived?

Relying on the militia was supposed to avoid such scenarios, in both slave and free states. Hence the inclusion in so many state Bills of Rights of some mention of the militia—and something close to a consensus that a national Bill of Rights would also mention militias. How that amendment would be worded was a more open question. Bogus discusses the different phrasings, before eventually writing that "In fact, dear reader, it is a good bet that by now you have spent more time thinking about what James Madison thought about the Second Amendment than Madison, himself, spent thinking about the provision."

Bogus argues, then, that Madison's goal in writing the Second Amendment was to ensure that slavery continued, that militias were an instrument of white supremacy, and that the Amendment's wording did not matter. This is a valid argument. Intellectual and legal history, with their explorations of ideas and phrasings, tend to brush over past injustices. Histories of North American militias need to remember that they protected a system that kept humans in bondage from birth to death, normalized rape, and relied on systematic torture. Exploring the nuances of eighteenth-century definitions of "the people" or "bear arms" distracts from those past crimes and sufferings.

Madison's Militia isn't a history of the militia or of slavery, though. It's a history of the Second Amendment. That, ultimately, is where there's a disconnect between Bogus's argument and the content of his book—or, if you prefer, that's where he takes the argument farther than it should go. Several overlapping and intertwined reasons led the men in the First Congress to include the Second Amendment in the Bill of Rights; slavery was one of those, and, of all the factors, the one that would most shape the first generations of U.S. history. But, to speak counterfactually, a Bill of Rights for a republic that stretched from Pennsylvania to New Hampshire would also have included an amendment dealing with militias and/or standing armies; and, when the First Congress wrote the original set of Amendments to send out for ratification, a Bill of Rights which did not mention the militia would have raised objections up and down the Atlantic Seaboard.

One final note: eighteenth-century fears of standing armies were an example of more longstanding concerns about the political threats that an army can pose. Again, maintaining civil control over military authorities is a challenge for any government. As I write this, Myanmar is ruled by a military which chose to disregard election results, Belarus is led by an unpopular leader whose control of the military allows him to stay in power, and Thailand waits to see if their military will respect the results of a recent election. The Second Amendment was not only meant to protect slavery, it was also meant to prevent those kinds of scenarios from happening in the U.S. Given the direction of American politics since 2016, we may be less immune from those scenarios than we once thought.