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Guns in church? Required by law in 18th century South Carolina

Madison’s Militia

By Carl Bogus

Published by Oxford University Press, 2023

Reviewed by David Lawsky

Text of the Second Amendment to the United States Constitution:

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.


Anyone attending the Presbyterian Church in Wiltown Bluff, South Carolina, on a Sunday in 1739 would have noticed the men carried guns and ammunition. South Carolina law required all men between 16 and 60 to be in the militia and to attend church every Sunday with their weapons. On September 9, services were interrupted by Lt. Gov. William Bull II, who had terrifying news: Blacks carrying banners and shouting “Liberty” had killed 40 White slave owners and their kin.

Some 100 members of the militia set off on horseback and found the Black rebels in a field about a dozen miles away. The militia attacked the 44 rebels, who fought back so fiercely they killed 21 White men before being overpowered. Surviving Black rebels were executed on the spot, their heads impaled on pikes. Others had fled as the battle began but were later captured and executed.

Slave uprisings were a continuing nightmare for Whites. Historians have identified 579 slave rebellions on land and sea, mostly between 1726 and 1800. The militia worked to protect White southerners from the possibility of Black rebellion, for example, by raiding plantations at night to uncover potential slave plots, but in 1788 slave owners faced a new danger.

State militia were under threat from the proposed new U.S. Constitution, its opponents said. Article 1, Section 8 snatched control of the militia from states and conferred it on Congress, opening the possibility the dominant northerners could eviscerate protection against slave rebellions.

Second Amendment politics

That threat gave birth to the Second Amendment, as Carl Bogus argued in a law review article. Now Bogus has written a full-length book, Madison’s Militia, adding rich historical context and details, showing how the Second Amendment arose from the politics of slavery in the eighteenth century.

Bogus examines the right to bear arms in England and four states, describes the desperation of slave rebellions and brutality of their repression, takes us to Revolutionary War battles where the militia fled in fear and depicts Patrick Henry’s fiery oration against the Constitution at the Virginia ratifying convention. He brings these elements together to argue that — whatever we may think now– the Second Amendment was vital to White southerners because it guaranteed state militia the unchallenged authority to rein in Black slaves.

Southern Whites may have fed the fiction to northerners that Blacks were content as slaves, but they knew better themselves. Georgia banned slavery in 1735 from fear of slave rebellions, eventually reversing itself under pressure from plantation owners who envied the wealth created by slaves in South Carolina. Thomas Jefferson, who owned hundreds of slaves, said the prospect of an influx of additional Black slaves into Virginia “filled [him] with terror.”

The militia calmed concerns by vigilantly policing plantations to preserve White power. What the militia were not, in either America or England, was an effective fighting force against professional soldiers. During the Revolutionary War, Henry Knox, later to be secretary of war in George Washington’s cabinet, called the militia a “receptacle for ragamuffins.”

Bogus describes these rag-tag soldiers in one battle after another, cutting and running when faced with English redcoats armed with fixed bayonets. This was not lost on James Madison, a proponent of a professional army, who argued at the Virginia constitutional ratifying convention that the United States “risked annihilation” if its defense were left to the militia.

Rusty muskets

President Washington, already skeptical of militia after his revolutionary wartime experience with them, called up 15,000 men to suppress the Whisky Rebellion in 1794 only to find that two-thirds lacked weapons. When York County, Virginia, did provide muskets, many were lost, sold, or allowed to rust within a few years.

Yet the militia were vital to the White South.

“The militia were ineffective as a fighting force but indispensable for slave control,” Bogus writes. This was underscored when a representative of South Carolina told Congress that its militia was unavailable to fight the British because they were needed at home “to prevent insurrections among the Negroes.”

Ratification debate

All of this became an issue in 1788 during fierce debate over the Constitution. Each state had called a special convention to vote on ratification and it seemed Virginia might be decisive.

In the Virginia debate, Madison, one of the principal authors of the Constitution, faced off against Henry, the former governor of Virginia known by generations of American school children for uttering the words “Give me liberty or give me death.” Henry sought weaknesses to attack the Constitution and looked to the powers of Congress enumerated in Article 1, Section 8, where the militia provided an excellent target.

At the Virginia ratifying convention Henry orated that the provision granting Congress authority “to provide for organizing, arming and disciplining the militia” would leave Virginia in a “deplorable” condition:

“[Congress’s] control over our last and best defense is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless; the states can do neither – this power being exclusively given to Congress.”

As was clear to everyone in the room, Congress could permit the militia to wither and leave Virginia prey to slave revolts. And whatever the reality might be, southerners believed a Congress dominated by anti-slave northerners might do just that.

The pro-Constitution forces mounted a strong campaign against the anti-federalists. Madison, Alexander Hamilton and John Jay portrayed the Constitution in the best possible light by writing a series of op eds in New York, later collected as The Federalist.

Bill of Rights

One sop to anti-federalists was to encourage them to draw up a series of amendments and chief among these was a bill of rights, opposed by Madison as unnecessary. He later had reason to change his mind.

Madison ran for Congress in a district gerrymandered under the influence of Henry, a political enemy, who stuck him with a majority of anti-federalist voters. To win support during the campaign, Madison told voters he had altered his views and would write and propose a bill of rights if elected to Congress. He was, and he did.

During a speech to Congress on June 9, 1789, Madison proposed his bill of rights, including what he called the “great rights” of trial by jury, freedom of the press and liberty of conscience. The text of the speech covers other matters, too, but has nothing to say about the right to bear arms.

Nonetheless, the Second Amendment was part of his package. The version proposed by Madison was almost identical to that adopted, except that it included a right to refuse military service by reason of conscience for groups like the Quakers.

Individual gun rights?

Bogus asks whether Madison’s version and the wording eventually adopted were meant to provide an individual right to arms separate and apart from the militia. For that to be true, Bogus argues, the amendment would have had to contain three separate propositions:

  • A well-armed and well-regulated militia is the best security of a free country.
  • The right of the people to keep and bear arms shall not be infringed.
  • No person religiously scrupulous of bearing arms shall be compelled to render military service in person.

Madison instead placed all three in a single sentence because “he was writing a single provision with three interrelated parts,” Bogus tells us. Congress dropped the clause on conscience but kept the other two, making their close relationship even clearer.

Still, Madison’s original version teaches us something about the two clauses which remain. The provision for conscientious objection makes no sense unless the amendment is about the militia. The right to bear arms responds to the concerns of Patrick Henry because it bars Congress from disarming the militia, whose members – as we have said — usually provided their own weapons.

Madison was not the first in America, nor in the wider English speaking world, to talk about a right to bear arms. The constitutions of Pennsylvania, North Carolina, Vermont, Massachusetts and the English Declaration of Rights in 1689 all mentioned it, but in contexts that had purposes and meanings different from the Second Amendment.

Bogus goes into great detail about each of the four states and also makes this general argument: the arms provisions were written near the start of the Revolutionary War when states held romanticized notions of the militia, following their success at the battles of Lexington and Concord. They believed men needed to bear arms for the militia so they could fight for their country.

Only later did it become apparent the militia were unable to operate as disciplined fighting units and a trained, professional army was needed to win the Revolutionary War. The right in those four states was nothing like England, which had a different approach for its own reasons.

English gun rights

Bogus spends an entire chapter giving us the background behind the English Declaration of Rights, which he explains was not for individuals but rather to enhance the authority of Parliament at the expense of the king. The Declaration empowered Parliament by saying Protestants (but not Catholics) could have arms “as allowed by law.” The law Parliament chose to pass had a means test that excluded gun ownership by 98 percent of the population.

By contrast, the Second Amendment was designed to ensure armed militia were able to preserve the security of White people against slave rebellions, a task to which they were more than equal — even if unfit for defending the country.

At the beginning Bogus makes clear that although he is a law professor this is a book about history, not law. Bogus is disciplined enough that he neither discusses today’s controversies nor reflects on development of the law, but readers who accept his carefully developed historical thesis may find themselves asking, “How did our culture and jurisprudence stray so far from the original meaning of the Second Amendment? How did the Supreme Court wind up finding an individual right to guns in its Heller decision in 2008 and Bruen decision in 2022?”

Thirteen words

The answer is that the Supreme Court decisions toss out half the amendment, dismissing the first 13 words variously as “prefatory” or a “preamble.” By relying on the last 14 words of the Second Amendment as the only “operative” clause the court has radically altered its original meaning.

A court that relies on history to guide its rulings better get it right, because if the history is wrong the decision probably is too. The story Bogus tells describes a Second Amendment in which every one of the 27 words counts and is — to use the Court’s word – operative. That is at variance with the Court version of history and demands serious consideration, requiring a reasoned reply by those who would disagree.

In the last two sentences of his book, Bogus allows himself to wonder what the reaction of Madison and others would be to today’s gun culture and the claim that the Amendment is about an individual right to arms. His conclusion:

“They would have been astounded.”



Sound of Metal' tells an emotional story of deafness – The San Francisco  Examiner

Riz Ahmed as Reuben, who lost his hearing, and Paul Raci as Joe in The Sound of Metal

You can never cross the same river twice. You will have changed and the river will have changed

-Paraphrase of Heraclitus

The Sound of Metal, nominated for several Academy Awards, is a fable for our time. It is more than that, of course, a superbly acted depiction of a musician who loses his hearing and spends the motion picture coming to terms with the change.

For much of the picture the musician holds out the hope and expectation that things will return to normal, the way they were. He abandons a retreat for the deaf to spend money he barely has on a complex operation with disappointing results, then re-unites with his girlfriend. In the end, the loss of love and treasure win him a painful wisdom.

The movie never alludes to what is happening with the pandemic, but the lesson is there for those who will see it. We will not pick up where we left off. People have died, symptoms have lingered, jobs have disappeared, businesses have closed and students missed two years of social life that is gone like water in Haraclitus’s river. Things will never be the way they were and we don’t know yet how they will be different.

24 April 2021, dl

World War I’s latest victims died in March 2014 in Flanders

World War I is still claiming lives in Flanders, Belgium. The towns Ypres and Passendale were the scenes of major WWI battles, ground zero for the Western Front. Here is my rough translation from the French of a story in the Brussels “Metro” paper of 20 March 2014:


Ypres – Two workers died yesterday [19 March 2014] after the explosion of a shell in the course of working on an excavation at Ypres, according to Mayor Jan Durenz and the press service of the Department of Defense. Another worker is in critical condition.

The accident happened at a construction worksite in an industrial zone. At about 1 pm, the workers struck a shell which exploded.

The Service for the Removal and Destruction of Explosive Engines (SEDEE) has gone to the scene.

At the beginning of the month, a large number of munitions were discovered at the border of Passendale and Moorslede. The SEDEE is now working in that zone.

(The piece goes on to say that there are still thousands of explosive shells in that region of Flanders. It does not say, but we have been reading, that 500 shells were discovered within the last few weeks. Half of them have poison gas that is still quite dangerous. They were abandoned by the Germans at the end of the war in 1918).

These deaths are not an isolated occurrence but something which happens periodically in Belgium.

This Google movie won’t be seen in the U.S.

There is a revelatory moment in the movie “Google and the World Brain” that is excruciating and fascinating. In the mountains above Barcelona, Spain, Father Damià Roure, library director of the ancient Monastery of Montserrat, shows us one of 23,400 books in his library digitised by Google.

Father Damia Roure
Father Damià Roure

“This was a way of spreading our culture. It gives us great satisfaction that they are available to everybody,” he says as he slowly turns the pages of a 16th century prayer book. The interviewer’s rejoinder is sharp:

‘”Google didn’t pay you to scan your books. Was that fair? What if someone turns this all into a business and makes a profit?”

Father Roure’s lips move; no sound emerges. He bites his lower lip. His chin dimples. His head shakes quickly back and forth and his shoulders take a dip. Still no sound.

“Perhaps the question is too difficult?” says the interviewer.

And so it is. If Father Roure failed to consider that this might be exploitation, instead of charity, then we are all a bit like Father Roure. Are G-mail, YouTube, Picasa, and Android all something for nothing? Is there such a thing as a free lunch after all?

Digital technology has turned traditional notions of value on their head as surely as printing multiplied the power of the written word, or steam trains moved passengers faster than horse-drawn carriages. Ben Lewis, director of the film, says the out-of-print books that are a focus of his film had virtually no value before. But in the new digital economy they are highly valuable, just like Montserrat’s prayer books.

Lewis explores how Google is trying to exploit this value before everyone else wakes up. I once spent time as a Reuters journalist working on the story of the Google books settlement, yet Lewis’s film had new things to teach me.

At the same time that a new Hollywood comedy about Google is being released with great hullabaloo, Lewis cannot get his film distributed in the United States, even though it was a BBC production and exhibited at the Sundance Film Festival.

It would make us question Google’s values, and the value of data we give up willingly every day.
(Disclosure: One of my clients actively opposes Google business practices which have been identified by the European Commission as anti-competitive; I work on this case)

Would the Federalists like their fans?

From The New York Times News of the Week in Review:

February 12, 1995
THE NATION: History Lessons; Would Federalists Like Their Fans?

WASHINGTON— WHEN it comes to peddling a political proposition in this town, nothing works better than dressing it up in the hallowed trappings of the Founding Fathers. Witness Senator Larry Craig, the Idaho Republican, trying to sell fellow senators on a constitutional mandate to erase the deficit.

“Let the new Federalist Papers of 1995 be crafted by this Congress to speak to the states of our nation and to tell them the virtues of a balanced budget amendment.” Thus did Mr. Craig invoke “The Federalist,” a collection of political tracts written some 207 years ago by John Jay, Alexander Hamilton and James Madison to persuade the states to ratify the Constitution.

For conservatives, “The Federalist” — really, a series of 85 op-ed pieces about the Constitution first published largely in New York newspapers — are the manifesto of constrained government. They so revere the book that one of their premier debating groups, The Federalist Society, is named after it. House Speaker Newt Gingrich recommended that each freshmen Republican in the House read it.

But what did Jay, Hamilton and Madison really think about the ideas behind the balanced budget amendment?

Not much, apparently.

The Founding Fathers were by no means free spenders; they wanted a government that could pay its debts. But in their political essays, they expressed grave reservations about the kinds of provisions that the creators of the prospective balanced budget amendment now have in mind.

At the heart of the balanced-budget proposal is a new rule that would make it tough to pass legislation permitting the country to sink further into the red. The amendment would require a supermajority, a three-fifths vote of all the members of each chamber — not merely those who are in their seats — to run an annual deficit or to borrow more money. As it stands now, Congress can bust its budget or extend its credit line any time a majority of the legislators who happen to be sitting in the House and Senate chambers votes to do so.

That seems to be the way the founders liked it. The Constitution says that a simple majority of the members in each house of Congress makes up a quorum that can do the nation’s business, whether the business is declaring war, proposing constitutional amendments to the states, ratifying treaties or impeaching a President.

Hamilton wrote in Federalist No. 22 that quorums of more than a majority are “poison” for a deliberative assembly. He was particularly worried that if a supermajority were required for a vote, a minority would have the power to stop business just by not showing up: “To give the minority a negative upon the majority (which is always the case when more than a majority is requisite to a decision) is in its tendency to subject the sense of the greater number to that of the lesser number,” Hamilton wrote. “Its situation must always savour of weakness — sometimes border on anarchy.”

Madison underscored the point in Federalist No. 58, warning that when a body required more than a majority to make decisions, “the power would be transferred to the minority.”

Now, what about the part of the proposed balanced-budget amendment that deals with taxation? The amendment specifies that a majority of all elected members — instead of a majority of those present — would have to approve new taxes. The idea, according to those who back the amendment, is to give Congress an incentive to balance the budget by cutting spending, rather than by raising more from voters.

Hamilton would not have cared much for that idea either. In Federalist No. 30, he wrote that “a general power of taxation in one shape or another” is necessary for (among other things) “the payment of the national debts contracted, or that may be contracted.” To water down the power to tax is to dilute what Hamilton, in Federalist No. 33, called “the most important of the authorities” of the Federal Government.

Madison Isn’t Laughing

If “The Federalist” can be used as a yardstick, the framers of the Constitution would also have been troubled by the fact that the proposed budget amendment has no way of enforcing its mandate, without impinging on Congress’s power of the purse. As written, the proposal calls for Congress to guess at the start of each fiscal year whether spending will be offset by taxes and other income. But if the projections turn out to be wrong (as they always do) and Government spending slips into the red, the amendment offers no course of action.

Hamilton and Madison would not have been amused. In Federalist No. 15, Hamilton wrote: “If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.” So if Congress can’t do the job, who will? The courts? The President? Either choice would run afoul of what Madison wrote in Federalist No. 48: “The legislative department alone has access to the pockets of the people.”

In truth, none of this is lost on amendment backers. At a recent news conference, Mr. Gingrich, who is a historian himself, was asked about the contradictions between the principles of “The Federalist” and the principles of the balanced-budget amendment. He said he was confident that the framers of the Constitution would like the changes, and that the Federalists would hardly have allowed for amendments had they thought the Constitution perfect. “Jefferson said every generation needs its own revolution,” Mr. Gingrich added.

Yes, but then again, Jefferson did not write the Constitution or “The Federalist.” And he was a Democrat.

Photo: Alexander Hamilton, one of the writers of “The Federalist.”