Three men, we know (if only from the lyrics of “Hamilton”) wrote the 85 Federalist Papers, Alexander Hamilton wrote 51, James Madison wrote 29 and John Jay wrote 5 to explain and urge ratification of the U.S. Constitution, which was written in 1787 and ratified in 1787 and 1788, bringing into being in 1789 the form of the government of our American federal republic.
One of the leading objections during the campaign for ratification was that the Constitution did not plainly declare and assure certain essential rights that the minority of free white men, who alone were politically empowered, believed they had as citizens of the new republic. It cannot be gainsaid that when the founders wrote “We the People …” as the opening words of the Constitution’s preamble, they absolutely meant “We the Free White Men…” Women had no legal, much less political rights and slaves were — well they were slaves with no rights whatsoever.
Others no doubt had their opinions and there was widespread sympathy for this viewpoint throughout the states among the general population; but in the end only a limited number of white men had any actual political rights, including the bedrock right to vote.
We do not have to guess at who and how many could vote. The first U.S. Census in 1790 (the census being a decennial constitutional command) reported the following in the original 13 states (with Maine counted separately though then still part of Massachusetts, and Kentucky counted separately though then still part of Virginia).
Total U.S. population: 3,893 million; free white males aged 16 and above, 807,000; free white males under the age of 16, 792,000; all free white females of any age, 1.54 million; other free persons (presumably free African-Americans, perhaps some Native Americans). 59,000; slaves 694,000.
Slaves it should be noted counted as 3/5 of a person for the purposes of congressional apportionment among the states and toward electoral votes. That distortion was a key part of the deal with the slave power (notably Virginia, North and South Carolina and Georgia, but also Maryland and Delaware). That sordid deal reverberates today in the disproportionate U.S. Senate — in which California with 40 million population has two senators and Wyoming with 500,000 population has two senators — and resulted in the Electoral College that lately elected Trump when, of course, “We the People” elected Hillary Clinton.
Alone among the founding 13 states, only Pennsylvania permitted universal white male suffrage, that is if you were of age and a white man, you could vote. But in virtually every other state there were severe and extensive limitations on voting as the nation went to the polls in 1788 to elect its first president and first congress under the Constitution.
These included, but for Pennsylvania, the very major limitation that only white men who owned property could vote. There were other varying restrictions limiting suffrage in many states, notably including religion. The 1st Amendment declares “Congress “shall make no law respecting an establishment of religion…” That did not stop some states from passing laws limiting the first federal suffrage on account of religion. In Massachusetts only Congregationalists could vote while Jews, Catholics and Quakers were barred from voting in Virginia and Rhode Island.
The result was that when the first federal election under the new Constitution took place in 1788 the total popular vote for president was 43,782. That’s right. Out of nearly 3.9 million inhabitants of the United States fewer than 44,000 voted in the election that made Washington our first president.
Those voters were 1.1 percent of the total U.S. population; just 1.3 percent of the free white population; less than 6 percent of the total adult white male population; 0 percent of the female white population and, of course, 0 percent of any other population component –especially nearly 700,000 slaves. In several states there was no popular vote, with the choice of electors left solely to the legislature.
In any case George Washington was nearly but not quite a unanimous choice to be our first president. He received some 39,000 popular votes in an election in which — notwithstanding the fact that he abhorred partisanship and saw the rise of political factions/parties during his administration as an abomination and would warn against them in his Farewell Address — he became perceived as the pro-Constitution, hence pro-Federalist candidate.
There were other candidates, some Federalist, some anti-federalist, notably, among the latter, New York Gov. George Clinton a cunningly ambitious man. So the first political party in our history was the Federalist Party and its rivals, emerging during the debate on ratification of the Constitution and then during the first presidential term (Washington was deemed a Federalist), identified themselves as Democratic Republicans.
(\The lineage of these two first parties? It’s an interesting subject about which whole books have been written. To diverge here for a moment suffice it to say, roughly, that The Federalists begat the Whigs who more or less though not exactly were succeeded by the Republicans while, through centuries of political evolution, the Democratic Republicans became today’s Democratic Party. But in the twists of passing centuries and over the course of our history, the two modern parties have pretty much each inherited the ideological views and stances of the first two founding factions/parties.
Alexander Hamilton became the foremost partisan Federalist and Thomas Jefferson the leading Democratic-Republican allied closely with James Madison, another Virginian elected to the first House of Representatives and generally (see below) identified as the architect if not the writer of the exact Bill of Rights.
In that first presidential election the rest of the field split the remaining 4,000 popular votes. Washington prevailed in the Electoral College with 69 votes to 34 for his closest rival, John Adams, who consequentially became the first vice president (presidents and vice presidents were not co-joined in tickets until after the election of 1800 caused adoption of the Twelfth Amendment). There were 35 other electoral votes scattered through the field of 12 candidates. Clinton got but 3 of them.
So if there was — and there was during the ratification debate and subsequent first federal election campaign — a demand from some quarters for immediate amendment of the Constitution to assure certain rights, the clamor that mattered for those changes came exclusively from white men — the only people with any political rights whatsoever.
Assuaging this grievance became part of the business of the first congress.
We are taught and told that James Madison wrote the Bill of Rights. In fact during the Constitutional Convention when 55 privileged white men adopted and amended the document whose chief architect was Madison, Madison opposed the notion of incorporating a statement of rights. He argued that the constitution established public rights in the very form of the three branches of government it established and the limitations and checks and balances on the them as it set down those limitations.
During the national, often very bitter debate on ratification, Madison came to change his view if only for the sake of harmony in the interest of ratification and to avoid reopening the entire constitutional question – fearing that to reopen it would tear the nascent republic asunder and result in what so many feared: not one nation but 13 small, quarrelsome nations.
Elected to the first Congress, Madison introduced a bill that would have gone back into the main text of the Constitution to amend it to provide clear declarations of rights. In the end, to keep the matter simpler and more manageable, the decision was made to add amendments to the document rather than to insert there throughout. That’s why the adopted amendments, including the first ten that together comprise the “Bill of Rights” (effectively the name of the legislation that created them) were appended to the unchanged main ratified text. Every subsequent change to the Constitution has been done the same way. Today there are in all, including the first ten, a total of 27 Amendments(a curiosity is that the 27th Amendment, though proposed in 1789 to prohibit the House and Senate from raising their pay during a current session but only for future prospective sessions, did not become ratified until 1992).
Only 11 states were represented in the first congress because two, Rhode Island and North Carolina, had not ratified the Constitution in time to take part in the first election or first Congress. In any case the first congress adopted and the states ratified the Bill of Rights so that its ten amendments became effective in December 1791.
We should all be familiar with the basic rights if not the exact enumeration of the first Ten Amendments. Among the most familiar, the First of course protects free speech, a free press and forbids an establishment of religion by government. The Fourth protects us against search and seizure. The Fifth protects us from self-incrimination.
Many of the first Ten Amendments — that is much of the Bill of Rights — responded to a perception that the Constitution did not directly identify and prohibit the kinds of violations of fundamental rights such as had occurred under and been ordered by the British monarchy when the states were colonies; or address the experience of Americans as colonial subjects or as subjects in rebellion during the American Revolution.
For example, we know that the British caused great outrage throughout the colonies when they landed an army in Boston in 1774 and required the then 10,000 or so resident citizens of that city to quarter the soldiers — that is whether liking it or not, Boston residents found themselves having their homes turned into barracks for the soldiers.
So the 3rd Amendment to the Constitution, an amendment virtually no one but a constitutional scholar, an historian or perhaps good lawyers and judges could describe — because the situation it addresses has never actually happened since the colonial and revolutionary period except perhaps during the Civil War (and even then in states that had declared they no longer were U.S. states) declares:
“No soldier shall in time of peace be quartered in any house without the consent of the owner, not in time of war, but in a manner to be prescribed by law.”
When is the last time you can recall a great debate or bitter political division or a consequential Supreme Court ruling concerning the 3rd Amendment? You can’t because it is of no consequence now, 230 years since it and the other nine amendments of the Bill of Rights were promptly ratified.
We know that particular grievance became a concern of and offense to all the colonies which, in 1787 and 1788 as they adopted the Constitution and the Bill of Rights, intended to assure that no one would ever again — without leave of law — impose the unwanted presence of soldiers in anyone’s private home.
Very clearly then, through the prism of history, in this case a view with one direction, back in time, we understand its meaning and the circumstance it addressed. We know, everyone knows, that the 3rd Amendment addressed that particular grievance of one city in one colony in the two years before the Revolution effectively erupted on April 18, 1775 at Lexington and Concord, Mass. So that amendment was timely for its time, 1791, when not even 20 years before Redcoats had pushed into and occupied the homes of Bostonians
It is the event at Lexington and Concord on April 18/19, 1775, when an aroused Massachusetts militia, warned by riders from Boston that the British had dispatched a large detachment to confiscate munitions they had been storing fired on the British. That event and the resulting War for Independence gave rise to the Second Amendment.
During the war, American land arms were represented in the official Continental Army funded by the Continental Congress and later equipped and financed with French assistance, and by state and local militias who, like the Minute Men at Lexington and Concord, invariably brought their own firearms to battle although they often melted away even before battle and often after a battle took place.
That fact, the existence of an armed militia as a participant, an important one from time to time in the battles of the American Revolution, gave rise to Madison’s expression of what became the Second Amendment. It fit the times and the experience of the very few Americans at the time.
Washington’s first cabinet included a Secretary of State (Jefferson), a Secretary of Treasury (Hamilton) and a Secretary of War (Henry Knox, who had been the chief artillery commander of the Continental Army). It also had an attorney general but only the first three offices were identified as having cabinet rank.
The Constitution makes the president the Commander-in-Chief “…of the army and navy of the United States. While Knox became Secretary of War, he had no Army with which to prosecute a war because, virtually to a man, the founding fathers of all persuasions firmly believed it would be wrong and dangerous to create a permanent standing army. In their experience permanent standing armies were the instruments of monarchies, like the monarchy that had required Bostonians to quarter its troops and against whose militarily enforced tyranny they had rebelled.
As adopted in the Bill of Rights the 2nd Amendment says:
“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.”
The actual, not the historical but the actual experience of the drafters of the Bill of Rights, of the Congress that voted for it and members of the state legislatures that endorsed it as required by the Constitution’s prescribed manner for amending the document, had two experiences of war. They had lived through or their parents had lived through the French and Indian War from 1756 to 1763 when frontier militia fought sometimes beside the British Army and its allied Iroquois tribes against the French and their allied Iroquois tribes; or they had lived through and perhaps fought in the Revolutionary War as soldiers or militiamen.
In their world, the colonies and then the brand new United States of America, militia played a vital part in war and militia members kept their firearms at home to defend themselves and their families from hostile attack by Native Americans and to hunt for game that provided food for their tables.
They had musket and one shot rifled muskets. Their artillery had a range of perhaps 500 to 600 yards. They had no conception of all the kinds of weapons that would be invented in the next 230 years. Nor did they conceive that one day the United States would support a permanent standing Army, have a Navy (they had not created one) that would have a land force known as the Marines. They did not and could have conceived of an automatic weapon. They loaded and fired their personal weapons one shot at a time.
There is a doctrine of legal thought most fervently represented in the contemporary American judiciary by the late Supreme Court Justice Antonin Scalia and continuing now on the court with particularly with Justice Neal Gorsuch, Samuel Alito and Clarence Thomas. It is a doctrine conceived and nurtured by the Federalist Society, a group composed of far right attorneys who have combined the past 40 years with the goal of instilling this doctrine in all interpretations and understandings of the Constitution, its progeny, the 27 Amendments, and all understanding and use of law in American courts.
It is the doctrine of original intent which holds that the words of the Constitution and especially of the amendments come down to us literally, are not subject to interpretation and must be read as if the founders and drafters of the Constitution and the Amendments intended them to serve literally in all situations down through history, in every age of history to the end of history.
Were that so, African-Americans would not be counted as whole persons but as three fifths of a person. Were that so our courts would not still be debating and interpreting the meaning the clause in the 7th Amendment that prohibits “cruel and unusual punishments…”
Then let’s go back to the text of the 2nd Amendment and, again, it says:
“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.”
The doctrinaire original intent faction fundamentally believe that it means you can’t in any way legally proscribe the right of Americans to own and carry arms — after all bear means carry as used in that sentence. Were it up to them everyone could walk around loaded for bear. But of course we have laws that limit gun ownership and use, at least some laws though fewer and fewer.
Historically, these doctrinarians ignore that since about 1800 and without interruption the U.S. has maintained a standing army. They ignore the fact that there is an Army Reserve and that each state is empowered to and has created a National Guard contingent, who effectively replicate the functions and uses of the Revolutionary War militia. But even today, National Guardsmen do not keep their official duty weapons at home and bear them one in times of necessity when ordered to be armed in carrying out their duties.
Then too look at the grammatical structure of the single sentence that is the 2nd Amendment. There have been finely honed legal arguments that come down to the purpose of the single comma in the sentence. Is it meant to be understood to give emphasis to the first half of the sentence that emphasizes the need for a militia, or to place the emphasis on a meaning that has descended to us in such a way that some Americans believe they can and should be allowed to have personal armories of weapons of war like the AR-15.
Had there been no comma they might be right — at least grammatically right as to the historic intention of the 2nd Amendment. But the comma is there and it clearly means to those respecting grammar that the emphasis is on the first half not the second half of the sentence. The drafters were concerned about the security of the United States of America. In their experience that required a militia that give the customs and necessities of the time meant its member (and only its members) should be able to keep arms at home and carry them if and when needed to defend the security of the State (the nation).
What can we glean from this? No sensible person can claim to know what was in the minds of the drafters of the Bill of Rights or of those who voted to append it to the Constitution or how they intended it to be used and understood in a future they could not see or understand anymore than we can understand and see our future (did any of us think 30 years ago that a place called the Internet would be a free-speech battle ground? Of course not.
It would be just as easy to interpret the 2nd Amendment today to say that only members of the National Guard can keep and bear arms without infringement on their right to do that as defenders of the security of the United States and that they can only keep them at places designated by law.
That would be my choice. History and grammar say it is as much and more the exact right interpretation of the 2nd Amendment as those who proclaim there can be no limits or almost no limits on who can have firearms, how many they can have or where they can keep them. No, the 2nd Amendment both from history and as a matter of its grammatical construction should be read in the most minimal terms.
There are presently about 330 million people living in the United States. It is estimated there are more than that number of firearms in private hands in the country. That is not only insane and abjectly stupid and remarkably dangerous, it is also well outside the historical basis and purpose and grammatical construction of the 2nd Amendment.
It is time to repeal the 2nd Amendment.
Peeling the Onion 