If you’re ever asked for a random quote from the annals of Virginia state government, here’s one to remember: “Nothing will preserve [liberty] but downright force … Everyone who is able might have a gun.”
Such a statement would not be out of place from Virginia Republicans today, with the newly elected Democratic legislative majority having just passed several major gun control bills, though not before a “pro-Second Amendment” rally last month of over 20,000 people against new gun regulations. But this quote isn’t from 2020 — it’s from 1788, during the debate on whether Virginia should ratify the proposed constitution for the 12-year-old nation.
It was said by Patrick Henry, of “give me liberty, or give me death!” fame. But we can assume he didn’t mean everyone ought to have a gun — presumably, he didn’t include the slaves he owned throughout his life.
In Virginia’s debate on ratification, some might draw parallels to modern America’s unique gun culture, distinguished by the belief that gun ownership is necessary to protect our rights. But we also see the true motivation behind the Second Amendment, a direct result of these debates in Virginia — perhaps, with implications for contemporary legal interpretations.
In summer 1788, as fellow Virginian James Madison (the primary writer of the Constitution) and his Federalist bloc pushed for ratification, they were opposed by Henry’s Antifederalists, who feared a strong federal government would subvert state authority. Of particular concern was Article I, Section 8, which empowered Congress to arm and train state militias, which to Henry amounted to empowering Congress to disband them.
Henry led the Antifederalists in refusing to support ratification until Madison drafted a Bill of Rights, including the Second 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.” With the Antifederalists’ demands met, Virginia ratified the Constitution on June 26, 1788.
The Second Amendment is widely held to have codified the view that individual gun ownership is needed to protect one’s rights. But whose rights, and more importantly what “rights,” were Henry and the Antifederalists trying to protect?
A closer look reveals a very specific impetus for the Second Amendment. In Virginia and the rest of the South, the main function of militias — membership in which was restricted to white men — was to enforce slavery; Henry and the Antifederalists felt that if the federal government dissolved state militias, it would be the end of their “right” to own their fellow human beings.
“Have they [Congress] not power to provide for the general defense and welfare?” Henry insisted. “May they not think that these call for the abolition of slavery? May they not pronounce all slaves free, and will they not be warranted by that power?”
This isn’t important just because it’s important to know history, or because we have a moral and civic responsibility to understand that our Founding Fathers had a darker side to them. It’s important because it could be cause to reconsider the legal interpretation of the Second Amendment as protecting individual gun ownership, as the Supreme Court ruled in DC v. Heller. The majority opinion in Heller was written by the late Justice Antonin Scalia, who was famous (or infamous) for originalism, the belief that the Constitution should be interpreted as the Framers understood it when it was written.
Under originalism, there is no way the Second Amendment can pertain to individual gun ownership, because Henry and the others would never have understood it that way — a guarantee of individual gun ownership could be construed as extending to the slaves and to free people of color, who throughout the antebellum South were barred from owning guns by state laws.
To the Framers, the Second Amendment was always a guarantee of the right of states to form militias. This can be intimated from the language as well: “the security of a free State”, not “country”; and the reference to the “right of the people,” not “right of people,” further suggesting a focus on the collective and not the individual.
Given these militias’ purpose of enforcing slavery, perhaps it could be argued, under originalist thinking, that the Second Amendment has been effectively nullified: With slavery abolished by the 13th Amendment in 1865, it bears inquiring what constitutional force can a guarantee of militias, enacted with the original intent of protecting slavery, still have.
Don’t hold your breath for the conservatives who swear by originalism to make this argument. But I hope this interpretation may be instructive for supporters of gun regulations like those recently passed by Virginia Democrats (including universal background checks, a limit on handgun purchases per month and a red flag law), now that the battle over guns has returned to the Old Dominion State.
This is the answer to claims like “the Second protects our First”; that the purpose of the Second Amendment is to protect individual gun ownership in order to protect basic rights. That couldn’t be further from the truth: The purpose was to protect state gun ownership in order to take away the most basic of rights.
Ben Reicher PO ’22 is from Agoura Hills, California. He joined his high school newspaper in ninth grade because he loved to argue, and hasn’t stopped since.