Supreme Court, the Second Amendment and the Real History of the US Constitution


Amy Coney Barrett shows she will be obedient to Trump by going maskless in close quarters.

The elevation of Amy Coney Barrett to the Supreme Court and the fact that that court will now have five Trump thinkalikes; the role of the armed and dangerous “militias” and the “precious Second Amendment rights”; the view of the majority of the (in)Justices of the Supreme Court that all decisions must be based on the “original intent” of the framers of the Constitution – all of this once again should focus our attention on what was their intent. That can only be understood by understanding who the framers of the Constitution really were and what was happening at that time.

The American Revolution (1765-1783) lasted 18 long years. No revolution, especially not a victorious one, will leave the population untouched. In this case, it left the white American colonial population not only in a state of ferment but also impoverished. Largely small farmers (we will get to the slaves in a minute), they were in debt to both the state governments (whose taxes they largely couldn’t pay) and to the merchants and bankers who had loaned them money. Some were actually put in debtors prison for inability to pay those debts.

The indebted small farmers sought to get state legislatures to issue paper money, which would make it easier for them to repay their debts.

Massachusetts militia fires on the tax and debt rebels of Shays Rebellion

The spirit of armed rebellion also lived on, and there was a series of armed uprisings culminating in Shays Rebellion in 1787. In that rebellion, the impoverished farm laborer and former soldier in the Revolution, Daniel Shays, gathered a force of hundreds of armed men and marched on the armory in Springfield, Massachusetts. His intent was to seize the arms there and organize a general revolution.

This armed revolt of private citizens was ultimately put down by the state controlled militias, and Daniel Shays had to flee for his life to Vermont. Vermont refused the attempts of the state of Massachusetts to force Vermont to return him, and Shays stayed in Vermont for several years until he was granted a pardon.

In those days the ruling “one percent” – the wealthy minority – were largely the merchants, bankers and slave owners. These events convinced them that the Articles of Confederation under which the states were governed was inadequate for several reasons:

First and foremost, the federal government lacked the power to levy taxes and, therefore, lacked the ability to build an army.

Second, since the states issued their own money, lack of one stable currency not only made debt collection in real terms uncertain; it also made interstate commerce uncertain.

Their problem was how to get a new form of government organized that would be accepted by the majority of the citizens (bearing in mind that only white males were really full citizens, and even then in most states only if they owned some property). So what they did was organize for the different legislatures to elect delegates to a convention in Philadelphia whose purpose supposedly was to revise the Articles of Confederation. Revise, not write an entirely new document. Nevertheless, when the delegates met in Philadelphia in 1787, they ran away with the supposed purpose and wrote an entirely new document – the Constitution of the United States of America. What were the views of the writers of the Constitution? What was their real purpose?

Much of this can be seen in the papers they exchanged called the Federalist Papers. James Madison was one of the foremost contributors to those papers. In Federalist Paper 51 Madison wrote: “The most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society…. The causes of faction cannot be removed.” Bear in mind that many small, white farmers were in effect without property since they were in debt. So were the workers in the cities.

As to the slaves: Some claim that the fact that the slaves were considered 3/5 of a person because that was how they were counted in the population. That is untrue. In any real sense, they were not considered as people at all. The 3/5 rule was a compromise between the slave owners in the largely rural South and the merchants and bankers in the North. It was aimed at ensuring that neither ruling class dominated the other.

In another sense, though, the “founding fathers” well recognized that slaves were human beings and dangerous ones at that. In Federalist Paper Number 43, Madison commented on the danger they posed when he wrote that “in the tempestuous scenes of civil violence (the slaves) may emerge… and give a superiority of strength to any party with which they may associate themselves.” In other words, he and the rest of the ruling class were keenly aware of the extreme danger should some new rebellion like Shays Rebellion widen and merge with a slave uprising.

Such an uprising would threaten to be completely out of control, partly because under the Articles of Confederation the federal government could not levy taxes and therefore was largely hamstrung as far as building a national army. Remember that the ruling class had to rely entirely on a state militia to put down Shays Rebellion. That was why one of he major powers the US Constitution gave the new federal government was to levy taxes.

So, the problem was how to build a new government that the masses of white men could not control? Several of the top officers in the former Revolutionary Army combined into the Order of Cincinnati. They advocated a monarchy. However, wiser heads realized that any attempt to create a monarchy would be like pouring gasoline on a fire. Leave it to Madison to lay out the problem and craft a solution: “To secure the public good and private rights [of the wealthy minority] against the danger of such a faction [of the impoverished majority] and at the same time preserve the spirit [italics added] and the form of popular government is then the great object…” In other words, to ensure that the rich minority (the ruling classes) could control the government without making it too obvious (like through a monarchy).

The answer lay in the structure of the new government.

Madison again (in Federal Paper #51): “The only answer that can be given is… by so contriving the interior structure of the government as that its several constituent parts may… be the means of keeping each other in their proper places…. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different [economic] interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the [rich] minority will be insecure.” So it was that as Madison explained in the same paper “The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures (this was only changed in 1913 because it became such an unwieldy source of corruption), the President would by electors chosen for that purpose by the people, there would be little probability of a common [economic] interest to cement these different branches in a prediliction for any particular class of electors.” Not only that, but Senators served for six years and only one third of them were elected in any one election. This made it impossible for any insurgent movement to constitutionally capture the federal government in any one election.

Nowadays, the talk is of the “genius” of the “Founding Fathers”. In his book An Economic Interpretation of the Constitution of the United States, James Beard explains where that “genius” lay: “We cannot help marvel at their skill…. Their leading idea was to break up the attacking forces at the starting point: the source of political authority for the several branches of the government…. And the crowning counterweight to ‘an interested and over-bearing [impoverished] majority,’ as Madison phrased it, was secured in the peculiar position assigned to the judiciary, and the use of the sanctity and mysstery of the law as a foil to democratic attacks.” That is the role for those black-robed oh-so impartial (in)Justices, who are appointed for life.

That is what the division of powers is really all about!

Coney Barrett and the others of the menacing majority like to claim they rest on the original intent of the framers of the Constitution. At the same time, they oppose any restrictions on private gun owners, basing themselves on the “precious Second Amendment”. What hypocrisy! The Second Amendment was aimed at establishing state-run militias – the same militias that were used to put down popular armed uprisings. It had nothing whatsoever to do with the rights of private individuals to own guns! In the aftermath of Reconstruction, the Second Amendment

Black Panther Party at the California capitol building. The NRA didn’t mind gun control laws aimed at the Panthers!

didn’t get in the way of disarming the newly freed slaves. Nor did it after the Black Panther Party marched into the California state legislature, arms in hand in 1967. No, that event was used to further restrict the right to carry guns, and the National Rifle Association and such groups offered not a word of objection. In other words, all this Second Amendment rights nonsense is purely aimed at strengthening armed and dangerous and usually racist right wing vigilante groups. (This is not meant to support or oppose restrictions on gun ownership; it’s just to say that all the hoopla about “Second Amendment rights” is historically and legally completely wrong.)

George Washington, slave owner and real estate speculator.
He was considered the richest man in the country in his time.

As to the general view and intent of the framers of the US Constitution, we will let George Washington – considered to be the richest man in the country at the time – have the last word. He commented: “the tumultuous populace of the large cities are ever to be dreaded.” 

Additional Reading: For those who would like to read more on this history, Oaklandsocialist recommends two books in particular.

  • First is Charles Beards’ An Economic Interpretation of the Constitution of the United States. It is a detailed history of how the ruling classes made sure that their economic interests were expressed through the writing of the U.S. Constitution.
  • Second is Howard Zinn’s classic A People’s History of the United States. This book clearly shows the struggles of the working class and the oppressed throughout the history of this country.
  • Finally, we recommend the Oaklandsocialist pamphlet What is Revolution? This pamphlet uses concrete examples to show how the capitalist class controls the state and under what conditions and through what means the working class can create their own state.

6 replies »

  1. Contradictions about in this article. The Panthers *used* the 2nd Amendment as a correct justification (though they were unregulated) for their fight for equality. Thousands of workers applied the 2nd Amendment to their defense of their class interests by ARMING THEMSELVES.

    A far better book reading would be this one: This Nonviolent Stuff’ll Get You Killed: How Guns Made the Civil Rights Movement Possible by Charles E. Cobb Jr. The thousands of times in the fight for *equality* was used means the fight for equal *rights* and that is all the rights afforded the White Man in the 1st, 2nd, and other individual rights *denied* people of color, especially Blacks, is the basic for all the struggles against racism in the last 200 plus years. This is as true for the 2nd as it is the 1st Amendment. The whole article avoids this and it more an example of applied liberalism that revolutionary socialism.

    • Thanks to David Walters for his comments, but he didn’t pay close enough attention to the article, which incidentally is about a lot more than the right to self defense and gun control. On that particular issue: The Black Panthers may have “used” the Second Amendment but it is a complete misreading of the original intent of that amendment as the “Founding Fathers” wrote it. There is no doubt that they were referring to state organized and run militias – something similar to today’s National Guard – and most definitely not armed groups of civilians. In fact, as the article explains, the state militias were used to put down armed groups of civilians such as in Shays Rebellion. Further, the article shows the hypocrisy of the gun control movement in that it was originally used against black people who armed themselves for self defense.

      The point is that the judges and (in)justices who claim to follow the original intent of the writers of the Constitution and then use the Second Amendment to overrule gun control laws are either hypocrites or ignorant of history or both. As the article makes clear, this history is not an argument for or against gun control; it simply debunks that legal claim against it. There may be completely valid arguments against gun control, but the original intent of the Second Amendment is not one of them. The arguments should be based on the interests of the working class, not original intent.

      I will give David this much credit, though: At least he has moved away from his original claim that the article was advocating some sort of gun control. He should openly admit his mistake on that claim. Further, and more important, the issue of the militias is not the central point of the article. It is unfortunate that David continues to focus on that one point.

  2. John, let me clarify something. The history of the 2nd A is interesting. There is no “intent” by the Founding Fathers. It was a pure compromise and there is a history to this. Madison and Hamilton but Federalists (Hamilton being the most extreme) both had very bad experiences with the State militias called up during the Revolutionary War. About half of all the men under arms were in these militias. Interestingly, the pro-British militias were organized the same way. Both sides militias “underperformed” to put in midly and for their respective generals trying to wage a continental war, were a pain in the ass. Much of this is described in the better books about that war but the most succinct explanation of all this is in Bob Chernow’s “Hamilton”.

    The anti-Federalists (Jefferson, et al) wanted the 2nd A in order to counter the weight of the centralizers of the Federalists, the original “Big Gov’t” wing of the ruling class(s). Hamilton was concerned about fighting off the 1. The French and 2. The British if they came to war again. The term “well regulated” is a Federalist proposal to put a break on the “mob rule” that they so feared (the Federalists opposed the French Revolution due to the unruly nature of that Revolution) they (meaning Hamilton) demanded the subordination of the “militias”…which were the state militias from the war…to the central government. That is what the 2nd A is all about.

    Militias by *everyones” definition was not the “National Guard”. This didn’t even occur until 1903 under the “Dick Act” which started the process of seperating out the NG from the State Militias. In a 1939 SCOTUS ruling ruled that the “militia” and the “NG” were to two distinct entities. Anyway, the militia, based on the Colonial Militias, were in fact “every able bodied man who owned a rifle”. Full stop. That is what a militia is. It is “formed” when the State called it up. And that in fact is what happened in the Revolutionary War.

    But yes, the militia system was designed specifically to put down…basically unauthorized militias like Shay’s Rebellion (they were themselves part of the state militia). I still think the article is weak. The fact is that most folks owned muskets and flintlocks and while it is true the 2nd Amendment was used to create that, the anti-Federalists certainly were not for the second phrase of the Amendment! The Slave section of the ruling class had little to fear from whites i their states and thus wanted a way to fight the Feds should they try to impose banning slavery or, as really was the case, to enforce “unjust” taxation. I think the writer of the article is trying to focus to small on the 2nd A without giving the *actual* discussion around it much credit…and it wasn’t solely about building the state militias to suppress rebellion. He’s just plain wrong about this, IMHO.

    • Thanks to David for his further comments. At least he seems to be backing off his previous implication that the original article was advocating some sort of gun control. The article is very explicit that it is not. Further, the Second Amendment was simply not the central part of the article. David also seems to concede the main point regarding the Second Amendment: that regardless of what other issues the framers of the Constitution may have had in mind, the recognition of militias refers purely to state-run militias. In no way does the Second Amendment mean authorizing private citizens arming and organizing themselves into private militias. David or anybody else might support or oppose that. That is irrelevant to the point raised in the article. In fact, in the time just prior to the Constitutional Convention the state militias were used against the private armed groups of citizens. The main reason the article raises this is that the far right (in)Justices on the Supreme Court and similar types throughout the federal judicial system claim to base themselves on what they think was the “original intent” of the framers of the Constitution. Whatever their intent may have been, they most definitely did not intend the Second Amendment to establish or authorize groups of privately armed citizens. That much is entirely certain. We see, here, the complete hypocrisy of the “original intent” claims. That is all I was saying about that. That, and no more. And I think it really is indisputable.

      As far as the National Guard: What happened was that the state militias eventually faded out and what came to replace their role was the National Guard. That is clearly true. Nobody says one was designed to replace the other or anything like that. Again, David, please read the article more carefully. And please don’t get overly obsessed with what was just one part of the article, and really not the central part at that.

      So, again, please let’s respond to what is in the article, not what the reader would like to think is in it.

  3. John, you are not understanding or deliberately leaving out what I noted about militias. Do you know what they were? When a colonial government or later, a state government called up a militia it was the armed citizenry. In fact one didn’t even have to own property to join (unlike voting requirements which did). The militia then and for over a 100 years was based on calling up all men to form the militia. It was understood to mean everyone with a gun. That is why there IS a 2nd Amendment. The Militia thing as I noted first was *added* during the discussions by the Hamiltonian Federalists. Every knew everyone had a gun. It wasn’t even a question. I should add that the Federalists *detested* the militias. They only wanted a Federal army (the former Continental Army of Washington). The militia phrase was put in there because the Federalists didn’t want individual states to control their own militias. They wanted them, when needed, to be subordinated to the Feds. That is why the phrase “well regulated” militia is there. IF it was up the Jeffersonians and anti-Federalists, that phrase never would of been added since in late 18th Century understanding, the militia was simply everyone (white men) with a rifle, something they wanted to protect for their own self interest. In this period, there was no definitional difference between an armed citizenry and a “militia”. Same thing.

    You were suggesting the article is about “intent” of the Founders. The author doesn’t seem to understand what that “intent” was as the writer makes no differentiation between the first and second parts of the 2nd A. Why is that? Largely because among “Post Modernist” historians there exists an attempt to “level” the discussion about all aspects of the Constitution, as if there were no important differences. This article is a reflection where only *one* “intent” is given about the militias. He has it completely the opposite of the way it actually was discussed and played out.

    • David seems to have some sort of obsession with individual citizens being armed. He should read Zinn’s “A People’s History of the United States” and then read James Beard’s “An Economic Interpretation of the Constitution of the United States.” He is simply mistaken that those who advocated for a strong national government “hated” the militias. They simply saw them as being inadequate, especially in the face of potential unity between the small farmers in the North and the slaves in the South, as the article points out. David is also simply factually mistaken in his implication that the militias of that day were some sort of democratic, armed individual citizens. They were controlled by the various state governments, who commanded them. Evidently David is not really that familiar with the situation in the year of so leading up to the writing of the Constitution. Otherwise, I would have expected him to have commented on the fact that in some instances some members of the militias refused to fire on protesters. That fact, however, proves my point. There was not a single instance in which the militias were called up in opposition to the tax and debt protesters. Just the opposite. The rebellions of militia members should be seen as a dynamic similar (but obviously not identical) to that of some instances of National Guard members becoming unreliable during the recent BLM protests.

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