The 2nd Am and supposed Anti-Federalist willingness to disarm non -militia-members and the poor [related to Arming America]

[Volokh, Eugene]

        As per Glenn Reynolds' suggestion, I thought I'd mention clearly
that this post relates to Arming America, so those who aren't interested can
skip it.  But it does rather squarely deal with one kind of argument about
the 2nd Am, and I think might be relevant to those who are writing,
teaching, or thinking about this issue.

        Some have recently suggested that a Framing-era willingness to
disarm certain kinds of people shows that the Framers didn't really see the
2nd Am as securing an individual right.  Now the fact that blacks, Indians,
or loyalists during the Revolutionary War were disarmed doesn't seem that
probative to me:  The right being individual is still quite consistent with
the government's denying the right to slaves (who were denied all rights),
to people of a race that was seen as inferior and enslavable, to people who
were seen as alien enemies (such as Indians), or to people who were seen as
domestic enemies (such as loyalists in time of war).  More broadly, the fact
that some people are denied certain rights doesn't mean that the rights
aren't individual -- it might just mean that the rights aren't absolute, cf.
the denial of free speech rights to Communists in the 1950s U.S., or the
denial of free speech rights to Nazis in many European countries today.

        But recent work -- especially by Prof. Bellesiles -- has made some
other, potentially more powerful claims:  Many of the Framers and Americans
shortly before and after the Framing, the argument goes, were willing to
also deny the right to (1) non-militia-members, (2) the poor, (3) Catholics,
and (4) the foreign-born.  If these claims are true, then they could indeed
be relevant to the debate about the scope of the right and maybe even its
nature.

        I wanted to alert people, though, to the fact that one such claim --
the claim that Anti-Federalists were willing to disarm non-militia-members
and the poor -- appears to be unsupported by the sources that the book
cites.  I hasten to say that perhaps the claim can be supported by other
sources -- I know of none, but perhaps some exist, and I'd love to hear
references to such sources if anyone on the list has them.  It's just that
whatever support there might be for this, Arming America doesn't give it.
In fact, the footnote it provides is almost startling in their failure to
support the claims in the text.

                The claim appears on p. 223, where "Arming America" says
that "[Former Anti-Federalist] Smilie, like most Anti-Federalists, had no
problem granting the state the authority to decide who should be allowed to
serve in the militia, or to limit those ineligible from owning guns.  Nor
did most Anti-Federalists want to see the propertyless carrying arms in or
out of the militia."  The sources given for this (n. 61, p. 519) are:

                1.  George Mason's speech to the Virginia Convention, Jensen
et al., eds., The Documentary History of the Ratification 10:312.

                2.  "Federal Farmer" [perhaps Melancton Smith], "An Old
Whig" [perhaps Smilie], Herbert J. Storing, ed., The Complete
Anti-Federalist (Chicago 1981) 2:224-27, 341-42, 3:49.

                3.  Edmund S. Morgan, Inventing the People: The Rise of
Popular Sovereignty in England and America (New York 1988) 173.

                Here's what the sources, which I had right in front of me as
I wrote this, say:

                1.  George Mason's speech says that the "militia" "consist
now of the whole people"; his fear is that under the new Constitution the
government might exempt people from militia duty, and (among other things)
that the militia might "be confined to the lower and middle classes of the
people, granting exclusion to the higher classes of the people," thus
subjecting militia members to "the most ignominious punishments and heavy
fines," something that can't happen "[u]nder a full and equal representation
such as ours."

                Mason says nothing about non-militia-members being barred
from owning guns.  Nor does he suggest that the propertyless should be
excluded from the militia.  In fact, he argues the militia should include
everyone, "high and low, and rich and poor."

                2a.  Federal Farmer, on pp. 224-27, says nothing about the
militia or about gun ownership.  On pp. 341-42, he discuss the matter, but
he says that "the constitution ought to secure a genuine and [sic] guard
against a select militia, by providing that the militia shall always be kept
well organized, armed, and disciplined, and include, according to the past
and general usage of the states, all men capable of bearing arms. . . .
[T]o preserve liberty, it is essential that the whole body of the people
always possess arms . . . ."

                Federal Farmer says nothing about non-militia-members being
barred from owning guns.  Nor does he suggest that the propertyless should
be excluded from the militia.  He does suggest that relying on the select
militia might be dangerous because it would consist "of men destitute of
property, of principle, or of attachment to the society and government," and
that if too much reliance is placed on the select militia, the consequent
"inattention to the general militia" will mean that "the substantial men,
having familes and property, will generally be without arms, without knowing
the use of them, and defenceless."  But his solution is emphatically *not*
disarming the propertyless, but rather requiring "that the whole body of the
people always possess arms."

                Moreover, he never says that the select militia will lead to
nonmembers being *legally* disarmed.  Rather, he suggests that they will
"generally be without arms" and "without knowing the use of them," which
seems to me to imply that the non-militia-members may end up lacking arms
simply for lack of reason (militia service) to learn how to use them.
(After all, how likely is it that the law would forcibly disarm specifically
the "substantial men, having families and property"?)  In any event, his
statement is certainly no support for the statement in the text.

                2b.  An Old Whig, at p. 49, says nothing about the militia
or gun ownership, except to say that "Judges, unincumbered by juries . . .
will always be more desireable than juries to a self-created senate, upon
the same principle that a large standing army, and the entire command of the
militia and of the purse, is ever desireable to those who wish to enslave
the people, and upon the same principle that a bill of rights is their
aversion."

                3.  Edmund Morgan, p. 173, discusses the militia, but says
nothing about the Anti-Federalists being willing to limit gun ownership by
non-militia-members, or being willing to disarm the propertyless -- in fact,
it says nothing about the Anti-Federalists at all.  Nor did my check of all
the pages listed in the Index under "Anti-Federalist," "Smilie," or "Smith,
Melancton," reveal any pages that said anything like what the "Arming
America" text asserts.

                Am I misreading some of these sources?  Also, I realize that
Prof. Bellesiles might have just erred in a few of his page numbers,
especially given that the Old Whig cite and the Morgan cite seem so entirely
unrelated to the claim -- does anyone know whether there is in fact a page
in these sources that does support the assertion.  Finally, I'm a bit
puzzled by the fact that the Mason and the Federal Farmer cites not only
don't support the claim in the text, but actually seem to cut in the
opposite direction; am I misreading them?

                Again, my apologies to those who are weary of this thread,
but I wanted to (1) inquire into the substance of this issue, and see
whether perhaps "Arming America" is ultimately correct despite the error in
the footnote, and (2) if the book is indeed mistaken, inform people so they
don't make the mistake on relying on its assertion (as I made the seeming
mistake of relying on Prof. Bellesiles' probate-based gun prevalence
estimate article in an article of mine).

                Finally, returning to the cite-checking discussion we had
recently, was there really no-one who checked this cite?  Is such a failure
to cite-check the norm in history books?  For all their faults, I believe
that most of the law reviews I've worked with would have caught citation
errors as seemingly serious as these ones.

                Eugene
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