Ar Volokh Conspiracy, Stephen Halbrook reviews (unfavorably) Madison's Militia: The Hidden History of the Second Amendment, by Carl Bogus (Oxford University Press, 2023). From the introduction:
Back in 1998—a decade before Heller—Prof. Carl Bogus claimed to have discovered a "hidden history" showing that the Second Amendment was adopted to ensure that militias could enforce slave control. Since that theory crops up now and then, in 2021 I posted a comprehensive historical refutation in SSRN, which was subsequently published in Georgetown Journal of Law & Public Policy.
Bogus has now rehashed his 1998 theory in Madison's Militia: The Hidden History of the Second Amendment (Oxford University Press, 2023), which adds nothing new on point. He states up front that he will not address how legal scholars or the courts have interpreted the Amendment, except to assert, without any support, that James Madison and his colleagues "would have been astonished" at the Supreme Court's holding that the Amendment "grants individuals a right to have guns…." ("Grants?" No, confirms.)
Bogus failed to address or even mention my paper, which is the only comprehensive critique of his 1998 article, even though it was first published a year-and-a-half before his book. Oxford University's readers who vetted his manuscript were either asleep at the wheel or biased in favor of his argument. This is good example of why courts today, when searching for historical analogues under Bruen, should rely on original historical sources and not skewed declarations by "historians." …
And from later on:
Bogus doesn't know what to do with the fact that, during the Revolution, four states adopted arms guarantees in their bills of rights, and three of them were in the North. Most states thereafter adopted arms guarantees, almost all of which were read to protect individual rights.
In 1776, Pennsylvania declared "that the people have a right to bear arms for the defense of themselves and the state…." That language clearly included self-defense and defense of the Commonwealth.
…
Plainly, the law and, later, the constitution recognized arms bearing for defense of self, family, and the Commonwealth. It wasn't to protect slavery, which Pennsylvania became the first state to ban in 1780.
Vermont adopted the same arms right as Pennsylvania, but its purpose wasn't to support slavery, which was prohibited by the same constitution that adopted the arms guarantee. …
…
Massachusetts was the first to add, in 1780, keeping arms: "The people have a right to keep and bear arms for the common defence." Bogus says one couldn't keep for individual reasons, but the law didn't preclude using arms for self-defense. And by the way, beginning the very next year, judicial decisions in the Commonwealth declared slavery to be unlawful.
So Bogus fails to acknowledge that three of the first four state constitutions to recognize the right to bear arms also abolished slavery at the same time or shortly thereafter.
Here is the description of Professor Bogus' book from the publisher:
This engaging history overturns the conventional wisdom about the Second Amendment–showing that the right to bear arms was not about protecting liberty but about preserving slavery.
In Madison's Militia, Carl Bogus illuminates why James Madison and the First Congress included the right to bear arms in the Bill of Rights. Linking together dramatic accounts of slave uprisings and electric debates over whether the Constitution should be ratified, Bogus shows that–contrary to conventional wisdom–the fitting symbol of the Second Amendment is not the musket in the hands of the minuteman on Lexington Green but the musket wielded by a slave patrol member in the South.
Bogus begins with a dramatic rendering of the showdown in Virginia between James Madison and his federalist allies, who were arguing for ratification of the new Constitution, and Patrick Henry and the antifederalists, who were arguing against it. Henry accused Madison of supporting a constitution that empowered Congress to disarm the militia, on which the South relied for slave control. The narrative then proceeds to the First Congress, where Madison had to make good a congressional campaign promise to write a Bill of Rights–and seizing that opportunity to solve the problem Henry had raised.
Three other collections of stories–on slave insurrections, Revolutionary War battles, and the English Declaration of Rights–are skillfully woven into the narrative and show how arming ragtag militias was never the primary goal of the amendment. And as the puzzle pieces come together, even initially skeptical readers will be surprised by the completed picture: one that forcefully demonstrates that the Second Amendment was intended in the first instance to protect slaveholders from the people they owned.
Posted at 6:09 AM