The 2nd Amendment and the Civil War

I really didn’t want to write this.  I don’t want to troll gun lovers, and anything about the 2nd Amendment is likely to tick people off. But there’s an historical perspective that I haven’t seen in this debate, and so today, a week after first writing it, I’m going to post.

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.


Guns and gun control and gun violence and preventing gun violence are all in the news these days, and have been since the Newtown tragedy.  The usual suspects are staking out the usual positions, with the Second Amendment invoked by conservatives, and sidestepped by liberals.  The most recent relevant Supreme Court decision on gun ownership, District of Columbia v. Heller upheld gun ownership as a private right, unconnected to militia membership, though it also agreed that any number of restrictions on firearm ownership were consistent with the Constitution.

So it’s there; it’s in the Constitution.  Why?  What would the purpose have been?  Because so much of the current debate is about the rights of sportsmen, people who hunt by avocation.  And yet the casual weekend hunter cannot be who the Founders were thinking of when they wrote the Second Amendment. Eighteenth century recreational shooting certainly existed–fox hunting dates back to the sixteenth century among the English gentry–but not really here. Well, perhaps to a very limited extent in Southern plantations, where wealthy society developed a bit along British lines. The point is, it was something aristocrats did, running to hounds on those English country estates.  Exactly the people, in other words, we were rebelling against.

So why?  What need in American society was the 2nd Amendment intended to address?

“Well-regulated militia.”  Remember that the Founders never intended the United States to have what they called a ‘standing army.’  They did not envision a professionally trained full-time military. They imagined that, on those occasions when an external threat gathered, that we could quickly recruit and train an army to deal with a short-term emergency. For the most part, that army would be drawn from local militias.  The biggest threats we faced in those days were Indian attacks and slave uprisings.  To deal with those, local communities were expected to form militias; to drill frequently, to conduct weapon inspections, to keep powder and bullets and (to some extent) extra muskets locked up in a local armory.

The Founders did realize that a navy might become necessary.  One of the first acts of the very first Congress involved a bill to build frigates–that is to say, medium sized warships, of 32 to 46 guns, fast and powerful enough to fight off pirates or privateers.  Our navy could not have stood up to the British or French navies, with their massive ships of the line, 74-100 gun warships, slow and ponderous, built with massive oak timbers. But we didn’t need a Channel fleet (a permanent fleet endlessly sailing the waters between Britain and France, keeping those massive continental armies from invading).

So that was the idea.  We would have a navy to protect our merchant shipping, and we would have militias to deal with small-scale local threats, and if we needed an army for some national emergency, we’d gather militiamen together and train one.

The Founders also didn’t really think in terms of cops.  Boston established the first municipal professional police force in 1838, though Philadelphia had begun training a rudimentary force five years earlier. New York followed, but in all three cities, cops were hopelessly corrupt.  We did have federal law enforcement–in fact, the first Judiciary Act of 1789 created 13 federal marshals. They only dealt with violations of federal law, only cases of the utmost severity.  Certainly they weren’t intended to have much local jurisdiction.

But the other fact was this: nobody knew if this whole ‘constitutional government’ thing was going to work.  That’s why a Bill of Rights was so important–the creation of a strong central government filled many Americans with suspicion.  1791, that suspicion and fear turned violent, in what was called the Whiskey Rebellion–basically a very dangerous tax protest.  The federal government had agreed to take on the war debts of the states–to pay for that, Alexander Hamilton declared a new tax, on whiskey.  In Western Pennsylvania, protestors intimidated federal tax collectors.  Federal marshals were called to the scene, and sent away.  So President Washington called out state militias, raised an army, commanded it himself, and put the rebellion down.

It’s not hard to read comments from the Founders suggesting that the purpose of the 2nd Amendment reflected a wide-spread skepticism about the effectiveness of representative government, or an entirely understandable fear of tyranny.  Nobody had ever done before what we Americans were proposing to do.  What if it went all sour?  Check out the Federalist Papers, numbers 29 and 46 in particular.  Here’s James Madison in Federalist 46:

In the several kingdoms of Europe . . . the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

The Founders had already overthrown one tyrannous government.  The Second Amendment was needed in case we ever needed to overthrow another one.  The rights of the people, in this case, trumped the rights of government.

Okay, so an armed populace, well-trained in a militia, was needed to prevent the federal government from acting in a tyrannous way.  If the federal government overreached, took away essential and basic American freedoms, then we had arms and officers and training–we could rise up again, if needed. Especially since the federal government wouldn’t have a standing army to oppose it.

I grant all that.  So let me ask this historical question: didn’t all that happen?  Wasn’t it true that at a crucial turning point in American history that an entire region of the country rose up in rebellion?  Used state militias as the basis for an armed insurrection against tyrannous federal power?  Wasn’t the clear intent of the Founders, as expressed in the 2nd Amendment, realized, in the United States, from 1861 to 1865?

Read, for example, about the Democratic national convention, held in Charlestown South Carolina in late April, 1860.  Read the comments of, among many others, William Yancey of Alabama.  All the rhetoric, all of it, is about liberty and tyranny and the constitutional rights of minorities.

We like to think of the Founders as wise and admirable men. And they were.  But given a choice, in the Constitution, of ending slavery (and that was discussed) and accommodating it, they chose . . . unwisely.  Given a choice between the economic advantages of slavery, the wealth slavery could accrue to their advantage, and the morality of it, they chose wealth.  So would most men, most times in history.  But they built a fault line into our nation’s foundation, and in time that fault line would widen, and that foundation would crack.  And the 2nd Amendment would become the jackhammer that would break us apart. And 600,000 men would die.

Today, the idea that of an armed rebellion against the might of the greatest military power in the history of the world is just ludicrous.  When 2nd Amendment advocates today quote (among others) Madison about an armed citizenry standing as a bulwark of liberty, they sound frankly crazy.  They sound like Randy Weaver, holing up with his family at Ruby Ridge, and the horror show that turned into. But to 18th century Americans, facing a federal government with no standing army, embarked on a previously untested, brand spanking new experiment in self-governance, that experiment must have seemed fraught with peril.  No wonder they wanted to keep their guns. And then, four score and seven years later, it all blew up in our collective faces.

So let me gently ask–not assert, but merely ask.  Wasn’t slavery a grotesquely immoral blunder?  Wasn’t the Constitution’s accommodation to it likewise a misjudgment?  But couldn’t that error, enshrined in our beloved founding document, start to be seen, not as an immoral horror show, but as a right, as something fundamental to our identity as white Americans?  And weren’t those who thought that way wrong?  Didn’t the 2nd Amendment fulfill its sad promise, on the battlefields of Shiloh and Antietam and Gettysburg? Was it ever anything but another mistake?

Isn’t it time to put that mistake behind us?

7 thoughts on “The 2nd Amendment and the Civil War

  1. N Wilson

    Between “A Midwife’s Tale” by Laurel Thatcher Ulrich and “Little House on the Prairie” – the second, fictionalized, the first, not – I’ve been under the impression that the majority of Americans did a certain amount of hunting, for purposes of supplying the table. As cities became larger and more dense, farmed animals became more and more used instead – but I don’t think hunting was generally limited to the white aristocracy. One of the rights Americans were pleased to have was the right to hunt- in England, poaching was a relatively new crime, it having been the right of the peasantry for generations before that to hunt for food for their families.
    In short – and granted, my research on this is not extensive – I’ve been under the impression that the 2nd amendment was not only for military purposes- that that was included in the text because it wasn’t the “of course” that everyone thought of automatically when they thought of guns.
    Maybe the fledgling US was more urbanized at the beginning than I’ve believed, but I understand the biggest threats to individual Americans were wild animals and starvation. Panther attacks were, I understand, well known in North America up through the late 1800’s; even today people have to be careful of Grizzlies (though now we have to actively seek out their territory – mostly).

    In short, I think the sportsman point of view has some merit. There are valid, legitimate reasons for which most people might want to own a gun. I don’t personally count self-defense as one of them; if I’d ever lived in an inner city, I might feel differently – though I personally would be more inclined to invest in kevlar than ammo.

    I’m also in favour of gun control – I think it’s possible to do both. I think guns could be regulated like cars- potentially deadly, but generally safe, for most of the population, when appropriately handled. There are countries which do this. Why can’t ours be one of them?

    1. admin Post author

      I’m sorry, I must have written carelessly. Early Americans did a great deal of hunting, but not recreationally, for the most part. They hunted for the pot. I also don’t disagree that there are legitimate reasons for someone to own a gun. I have family members who are responsible gun owners. I completely agree with your last paragraph.

      1. Ron

        Finally. Someone who gets it. We fought a war over this. It’s not some theoretical exercise. 600, 000 men died, in part, over this ill begotten monstrosity. My question is how the 2nd amendment survived the period after the Civil War.

  2. Matt

    To folks that believe the 2nd amendment is out dated and superfluous, I point this out. With the current state our collective fiscal house is in and what appears to an overwhelmed police force
    self defense is playing a more important role daily. Very rarely does law enforcement prevent a violent crime from occurring. The 2nd amendment is a right. We must be cautious about looking at rights as becoming outdated. Because when one right, as laid out by the Bill of Rights, is removed because of such a trivial reason as “outdated” what will stop another from being removed, then another and another and another and another.

  3. Vedette

    I too disagree with the gun lovers misunderstanding of the second amendment. However I notice the way you begin your story, you go off on a tangent about fox hunting. You say that in the 1700s we didn’t hunt. I think you have forgotten that people in the pioneer days hunted to put food on the table, aside from people in cities. They didn’t have grocery stores and refrigerators.

    But again the 2nd amendment is talking about militias, not hunting. “Bearing arms” is a phrase about warfare. The people of the day didn’t need any amendment to allow them to hunt, which is a laughable misread of the phrase so many gun lovers leap to when allowed.

    And the point of the 2d amendment had to do with making it more possible to arm the militias when rebellions like the whiskey rebellion arose since at the time we did not have a standing army and had made it hard even to get the militias armed and ready to put down rebellions without going through the legislature each time they needed to get in the armory. The founding fathers apparently were afraid of having a coup, so they regulated our defense forces and made it hard to keep a standing army without approving it every two years. Back then we didn’t keep a standing army after defeating Great Britain.


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