Missouri Law Review Missouri Law Review
Volume 88 Issue 2 Article 9
Spring 2023
Revisiting the Original Congressional Debates About the Second Revisiting the Original Congressional Debates About the Second
Amendment Amendment
Dru Stevenson
Follow this and additional works at: https://scholarship.law.missouri.edu/mlr
Part of the Law Commons
Recommended Citation Recommended Citation
Dru Stevenson,
Revisiting the Original Congressional Debates About the Second Amendment
, 88 MO. L.
REV. (2023)
Available at: https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
This Article is brought to you for free and open access by the Law Journals at University of Missouri School of Law
Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of
University of Missouri School of Law Scholarship Repository. For more information, please contact
Revisiting the Original Congressional
Debates About the Second Amendment
Dru Stevenson
*
ABSTRACT
Many scholars and courts have written about the historical
background of the Second Amendment, either to emphasize its
connection to state-level citizen militias or to argue that the
Amendment protects an individual right to own and carry guns for
self-defense. While many authors have mentioned the original
congressional debates about the Second Amendment, the literature is
missing a thorough, point-by-point analysis of those debates, situating
each statement in Congress within the context of the speaker’s
background and political stances on issues overlapping with the right
to keep and bear arms. This Article attempts to fill this gap by
providing a methodical discussion of each comment or argument
made in Congress when the Second Amendment was under
consideration. This discussion addresses how each of the
congressmen’s comments connect to public statements made by the
same members of Congress in the months that followed on related
topics: taxation and public debt related to militias, the supply of
available firearms and their legal status as private or public property,
the institution of slavery, westward expansion, and especially the
complications for each of these issues posed by the Quakers, who
became the center of attention during the debates about the Second
Amendment. These original congressional debates have taken on
more importance following the Supreme Court’s recent holding that
courts should decide Second Amendment challenges based on
historical evidence from the years immediately preceding and
following ratification. While this Article does not take a position on
current litigation over modern firearm regulations, the discussion
here can offer courts and commentators new insights into the original
public meaning of the Second Amendment.
*
Wayne Fischer Research Professor, South Texas College of Law Houston.
1
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
456 MISSOURI LAW REVIEW [Vol. 88
TABLE OF CONTENTS
ABSTRACT ................................................................................................... 455
TABLE OF CONTENTS .................................................................................. 456
I. INTRODUCTION ........................................................................................ 457
II. BACKGROUND: THE HELLER DISCUSSION .............................................. 462
III. THE CONGRESSIONAL DEBATES ABOUT THE SECOND AMENDMENT .... 470
A. Elbridge Gerry (MA) ....................................................................... 471
B. James Jackson (GA) ........................................................................ 478
C. William Loughton Smith (SC) ......................................................... 481
D. Roger Sherman (CT) ....................................................................... 485
E. Jack Vining (DE) ............................................................................. 487
F. Michael Jenifer Stone (MD) ............................................................ 489
G. Egbert Benson (NY) ........................................................................ 491
H. Elbridge Gerry (Reprise) ................................................................ 494
I. Aedanus Burke (SC) ......................................................................... 495
J. Thomas Hartley (PA) ....................................................................... 504
IV. POST-VOTE DEBATES ON AUGUST 20 ................................................... 506
A. Thomas Scott (PA) ........................................................................... 507
B. Elias Boudinot (NJ) ......................................................................... 512
C. The Silence of James Madison (VA) ................................................ 515
V. REFLECTING ON THE DEBATES: WHAT CAN WE INFER? ........................ 516
A. Protecting Individual Rights or Protecting the Militias? ................ 517
B. The Second Amendment and Assumptions About Public Versus
Private Ownership of Firearms .................................................... 518
C. The Colony With No Militia ............................................................ 524
VI. CONCLUSION ......................................................................................... 528
2
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 457
I. INTRODUCTION
“Not all history is created equal,” propounded Justice Thomas
recently in a majority opinion for the Court.
1
In context, he was referring
to the use of historical evidence in constitutional interpretation, and
specifically to the Second Amendment: “The Second Amendment was
adopted in 1791; the Fourteenth in 1868,” Thomas continued, “Historical
evidence that long predates either date may not illuminate the scope of the
right if linguistic or legal conventions changed in the intervening years.”
2
Fourteen years earlier, in District of Columbia v. Heller,
3
the Court had
undertaken an in-depth review of the background history for the Second
Amendment; Justice Thomas followed his “not all history is created equal”
quip in Bruen with a crucial line from Heller: “Constitutional rights are
enshrined with the scope they were understood to have when the people
adopted them.”
4
In New York State Rifle & Pistol Association, Inc. v.
Bruen, the Supreme Court doubled down on the history-as-law approach
to the Second Amendment that the Court had first taken fourteen years
earlier in Heller.
5
Rejecting the lower court’s two-step intermediate
scrutiny approach in the case, the Court not only took a hard stance on its
historical approach, but narrowed the window of historical documents that
would receive weight in constitutional analysis.
6
As a consequence of the
Bruen Court’s history forward reasoning, future Second Amendment cases
will turn mostly on historical arguments and evidence, though modern
means-and-ends analysis may play some role in the analogical reasoning
the Court contemplates.
In the years since Heller, several book-length histories about the
Constitutional Convention,
7
the Ratification debates,
8
and the First
Congress have appeared,
9
providing richer context and background about
1
New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2136
(2022).
2
Id.
3
554 U.S. 570 (2008).
4
Bruen, 142 S. Ct. at 2136 (quoting Heller, 554 U.S. at 634–35).
5
See id. at 2128–34.
6
Bruen, 142 S. Ct. at 2125–26.
7
See, e.g., JOHN R. VILE, THE MEN WHO MADE THE CONSTITUTION: LIVES OF
DELEGATES TO THE CONSTITUTIONAL CONVENTION (2013); DAVID O. STEWART, THE
SUMMER OF 1787 (2007) (released while the Heller appeal was already pending, so it
was realistically not available for consideration at the time).
8
See, e.g., PAULINE MAIER, RATIFICATION: THE PEOPLE DEBATE THE
CONSTITUTION 1787–88 (2010).
9
See, e.g., FERGUS M. BORDEWICH, THE FIRST CONGRESS: HOW JAMES
MADISON, GEORGE WASHINGTON, AND A GROUP OF EXTRAORDINARY MEN INVENTED
THE GOVERNMENT (2016); see also JONATHAN GIENAPP, THE SECOND CREATION:
3
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
458 MISSOURI LAW REVIEW [Vol. 88
each of the representatives who contributed their thoughts about the text
of what we know today as the Second Amendment. This Article revisits
those debates to develop more context for what the members of Congress
actually said,
10
and from there draws new inferences about the original
public meaning of the Amendment that can inform courts today as they
apply the Court’s current rubric to cases challenging state and federal
firearm laws.
The Court’s originalist methodology may have evolved in the years
since Heller, and its current trajectory makes it especially important to
revisit a specific part of Second Amendment history—the original
congressional debates (only the House debates survive) and the draft
version of the Amendment that the House voted to adopt. Over the last
two decades, several academic commentators have discussed the
comments of one or two of the House members and summarized a few of
the others,
11
but only one article predating Heller considered the original
debates argument-by-argument.
12
As acknowledged in Heller,
13
the original congressional debate about
the Second Amendment focused on militias and Quakers, or more
generally, on religious pacifists as conscientious objectors.
14
The militia
FIXING THE AMERICAN CONSTITUTION IN THE FOUNDING ERA (2018) (heavy emphasis
on the debates in the First Congress about the meaning of the Constitution).
10
See 5 ANNALS OF CONG. 749–52, 766–67 (1789).
11
See, e.g., NOAH SHUSTERMAN, ARMED CITIZENS: THE ROAD FROM ANCIENT
ROME TO THE SECOND AMENDMENT 206–14 (2020) (briefly summarizing the House
debates about the Second Amendment); SAUL CORNELL, A WELL-REGULATED
MILITIA: THE FOUNDING FATHERS AND THE ORIGINS OF GUN CONTROL IN AMERICA
60–62 (2006) (same); see also Todd B. Adams, Should Justices Be Historians? Justice
Scalia’s Opinion in District of Columbia v. Heller, 55 U.S.F. L. REV. 301, 325 (2021)
(discussing Elbridge Gerry’s comments at the debates and summarize a few others);
Douglas Walker, Jr., Necessary to the Security of Free States: The Second Amendment
As the Auxiliary Right of Federalism, 56 AM. J. LEGAL HIST. 365, 381 (2016)
(discussing Elbrige Gerry’s comments in the House debates); Saul Cornell, Conflict,
Consensus & Constitutional Meaning: The Enduring Legacy of Charles Beard, 29
CONST. COMMENT. 383, 387 (2014); Patrick J. Charles, The Constitutional
Significance of a “Well-Regulated Militia” Asserted and Proven With Commentary
on the Future of Second Amendment Jurisprudence, 3 NE. U. L.J. 1, 62 (2011)
(discussing Gerry’s comments and the response to them) (same); Dennis A. Henigan,
The Heller Paradox, 56 UCLA L. REV. 1171, 1185 (2009).
12
See H. Richard Uviller and William G. Merkel, The Second Amendment in
Context: The Case of the Vanishing Predicate, 76 CHI.-KENT L. REV. 403, 495–510
(2000).
13
See, e.g., D.C. v. Heller, 554 U.S. 570, 589–90 (2008).
14
Quakers were by far the most prominent and problematic group in this
category. Several excellent historical monographs about the Quakers in the Founding
era have also appeared since Heller that clarify their position in the social and political
landscape of the Founding era, as well as their internal norms about nonviolence and
self-defense. See, e.g., ESTHER SAHLE, QUAKERS IN THE BRITISH ATLANTIC WORLD
4
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 459
issue overlapped with other hot topics in the First Congress—most
importantly, whether the federal government would assume the states’
unpaid war debts (mostly to militia members for their service) and the
relatedly thorny question of how to finance the national defense and
national security in the future. Militias and armies touched on the most
fundamental political divide of the day: the allocation of power or freedom
between the federal and state governments. Most of the academic debate
about the historical meaning of the Second Amendment has focused on the
militia-or-individual right dichotomy. This dichotomy, however, is
misleading because both personal gun ownership and militias overlapped
with complicated, pressing policy questions related to the public fisc,
taxation, federalism, Native American affairs, westward expansion, and
slavery.
15
Of course, regardless of whether someone at the time thought
that the Second Amendment was about individual self-defense or state
militia service, the supply or availability of firearms was part of a set of
background assumptions, the lens through which they thought about both
self-defense and militias. As twentieth-century novelist L.P. Hartley
observed, “The past is a foreign country; they do things differently
there.”
16
The most novel contribution of this Article relates to the Quaker part
of the discussion, which has been a neglected topic in the literature about
the Second Amendment. The First Congress had to confront what I will
call “the Quaker Factor” on at least four occasions in its inaugural two
years: (1) when it discussed the Second Amendment, (2) a few months
later when the Quakers petitioned Congress to end the slave trade and/or
1660–1800 (2021); RICHARD C. ALLEN & ROSEMARY MOORE, EDS., THE QUAKERS:
1656–1723 (2018); JANET MOORE LINDMAN, A VIVIFYING SPIRIT: QUAKER PRACTICE
& REFORM IN ANTEBELLUM AMERICA (2022); SARAH CRABTREE, HOLY NATION: THE
TRANSATLANTIC QUAKER MINISTRY IN AN AGE OF REVOLUTION (2015).
15
Also inseparable from any discussion of militias was the question of “Indian
affairs,” especially on the frontiers of the states and in the new territories—there were
armed conflicts underway with native tribes in some parts of the country at the time
Congress debated the Second Amendment, and there were intense debates about how
much the federal government should help the state militias in this regard. Militias also
implicated the policy debates about slavery, as militias played an important role in
suppressing or deterring slave revolts, and in some states, in conducting routine slave
patrols. There were also armed insurrections among the citizenry fresh in the minds
of the Congress (most famously Shay’s Rebellion and the later Whiskey Rebellion),
and armed conflicts among settlers along the disputed boundaries of some states—the
Yankee-Pennamite wars between citizens of Connecticut and Pennsylvania, and the
armed conflicts between Pennsylvania and Virginia—both of which involved legally
complicated militia activity immediately before, and to a lesser extent after, the War
of Independence. See generally FREDERICK W. GNICHTEL, THE TRENTON DECREE OF
1782 AND THE PENNAMITE WAR (1920) (describing how the conflict arose and played
out in its early phases).
16
L.P. HARTLEY, THE GO-BETWEEN 17 (1953).
5
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
460 MISSOURI LAW REVIEW [Vol. 88
abolish slavery, (3) when they debated about the location for the
permanent home of Congress, and (4) when Congress considered the first
federal Militia Act.
17
A number of the same members of Congress spoke
on two or more of these occasions, expressing similar sentiments, so these
three other debates about the Quakers shed light on their comments while
debating the Second Amendment.
18
Moreover, as evident by occasions
when Quakers came up as a point of discussion, the Quaker Factor
overlapped with militia issues and the slavery topic. Less well known is
that the Quakers posed serious complications for Native American policy
(they had friendly relations with tribes that were hostile to other settlers),
taxation (Quakers were wealthy and engaged in widespread tax protests
related to wars), state war debts owed to veterans (Quakers refused to pay
taxes earmarked for veterans’ benefits),
19
the gun supply, and westward
expansion (Quaker settlers streaming into the new territories). Analyzing
or discussing the right to bear arms in isolation from other related issues
will inevitably shortchange our understanding of the original public
meaning of the Second Amendment and its text.
The Society of Friends (Quakers) emerged amid the political and
social upheaval of seventeenth-century England. Apart from the
persecution they experienced merely for being part of a non-Anglican sect
(something other sects endured as well),
20
the Quakers early on adopted
some tenets that made them uniquely unpopular with those in power. They
refused to take loyalty oaths (or any oaths), which was problematic in an
era of political coups and revolutions, when those who seized power would
require loyalty oaths from their constituents.
21
They also eschewed
everyday conversation signals that recognized differences in social class.
For example, they would not remove their hats in the presence of
dignitaries, much less bow or curtsey, and they insisted on using “thee”
and “thou” long after the rest of the population started using “you”
(singular), when at the time, addressing someone with “thee” or “thou”
was considered disrespectful.
22
After their first decade or so, they adopted
an official position of pacifism and refused to serve in the military. They
further refused to pay tithes to support the Anglican church, which was
17
See generally Patrick J. Charles, The 1792 National Militia Act, the Second
Amendment, and Individual Militia Rights: A Legal and Historical Perspective, 9
GEO. J. L. & PUB. POL’Y 323, 376–77 (2011) (discussing the passage of the Militia Act
and the controversy over exempting religious pacifists).
18
See generally SHUSTERMAN, supra note 11, at 206.
19
See ARTHUR J. MEKEEL, THE QUAKERS AND THE AMERICAN REVOLUTION
367–68 (1996).
20
See RICHARD C. ALLEN & ROSEMARY MOORE, THE QUAKERS: 1656-1723
124–47 (2018).
21
See id. at 191–96.
22
See id. at 13.
6
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 461
required by law (basically a tax).
23
Of these, the two tenets that subjected
them to the most persecution were the refusal to take oaths (which meant
they were automatically suspected of being insurrectionists) and their
refusal to pay tithes or religious taxes—even if it meant imprisonment or
confiscation of property worth far more than the tax itself—a point that is
relevant for understanding their practices during and after the American
War of Independence.
As the following discussion will show, Quakers not only became the
center of discussion when the First Congress debated the Second
Amendment, but on other occasions as well. Looking at those discussions
together can help our understanding of what the drafters of the Second
Amendment hoped to accomplish and what they wanted to prevent, as well
as how their constituents—who would ultimately ratify the Amendment—
understood its terms.
Part II is a quick review of the exchange between Justice Scalia and
Justice Stevens in their respective opinions in Heller about the
congressional debates in August 1789 regarding the proposed amendment
protecting the right to keep and bear arms. Both Justices made some valid
or plausible points, but both also made some mistakes, either misstating or
misunderstanding the history. The Bruen opinion did not mention the
congressional debates at all, and therefore neither affirmed nor rejected
Justice Scalia’s assessment in Heller about this specific piece of history.
On the other hand, Bruen adopted an approach that much more explicitly
relies on history than did Heller, and simultaneously restricts such reliance
to a historical period narrower than that embraced or considered in
Heller—the period immediately before, during, and after the adoption of
the Second Amendment. This narrower, more focused window of time
includes the congressional debates about the Amendment and makes those
debates a larger component of the relevant history for future Second
Amendment analyses.
Parts III and IV move methodically though the debates speaker-by-
speaker, scrutinizing each speaker’s arguments in detail and putting each
comment (and its author) in context. Because the debates spanned two
days in 1789—August 17 and 20—I have devoted a Part to each. Part III
is about the debates and the debaters on August 17 and is the lengthier of
the two Parts. Part IV is about the brief debate that resumed on August
20—an important exchange between Thomas Scott of Pennsylvania and
Elias Boudinot from New Jersey.
Part V presents some reflections on the debates as a whole—what
topics were discussed, what topics were not discussed, and what inferences
we can draw today when evaluating Second Amendment objections to
modern statutes and regulations. By such inferences, I present two
alternative theories about the “public meaning” of the Second
23
See id. at 12–15.
7
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
462 MISSOURI LAW REVIEW [Vol. 88
Amendment. The first is that there was no universal public meaning
because the Amendment meant different things to different people at the
time depending heavily on the region and the other political positions the
individual held, such as the assumption debate and federalism. The
alternative theory is novel; I argue that the Second Amendment’s original
purpose was to prevent any state, or the federal government, from adopting
the type of antimilitary or pacifist policy—as an official state policy—that
Pennsylvania had adopted for most of its history before 1776, and that the
individual right to keep and bear arms was related to this preemptive
blocking of any official pacifist policy. This is posited as an alternate
theory, and if the first theory is correct—that the Second Amendment at
the time of ratification was understood differently in different parts of the
country—then the alternate theory could still have represented the
understanding of some portion of the voting citizenry at the time. Part VI
is a brief conclusion, recapping the main takeaways from the Article and
identifying some points that deserve further research and commentary.
II. BACKGROUND: THE HELLER DISCUSSION
Heller arose as a Second Amendment challenge to an unusual
ordinance in the District of Columbia that generally prohibited possession
of most operational firearms.
24
The larger issue in the case, however, was
whether the Second Amendment protected an individual right to keep and
bear arms, versus a state right to maintain a local militia of nonprofessional
combatants.
25
The latter was the traditional view, but the former, more
modern view had grown in popularity among legal academics in the
twenty years leading up to Heller, and no one disputed that most of the
Founders believed in some kind of individual right to own weapons—apart
from the question of whether the Second Amendment codified that
individual right—as opposed to preserving the Founding-era state militia
system.
26
The majority decided that this question should turn on what was
the original public meaning of the Second Amendment at the time is was
ratified,
27
which meant both the majority and dissenting opinions
extensively scrutinized the paltry legislative history of the Amendment as
well as relevant excerpts from The Federalist Papers, state statutes and
constitutions, Blackstone’s Commentaries on the Laws of England, and
even medieval English legal texts. One might have expected that the
debates in the First Congress about the text of the Second Amendment,
24
For a classic account of the unique ordinance at issue and the origin of the
legal challenge to it, see ADAM WINKLER, GUNFIGHT: THE BATTLE OVER THE RIGHT
TO BEAR ARMS IN AMERICA 3–14 (2011).
25
See id.; see also id. at 95–122.
26
See D.C. v. Heller, 554 U.S. 570, 576–77 (2008).
27
See id. at 265–90.
8
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 463
which went through a few revisions, would have been central to answering
the question of original meaning. The House debates, which are the only
congressional legislative history that has survived, disappoint in this
regard, because there is no mention of the question of whether individuals
have a constitutionally protected right to own firearms. Instead, the House
debates centered around conscientious objectors to military service, which
were predominantly Quakers at the time, with a few digressions into the
dangers of a permanent federal army comprised of professional soldiers.
28
The Heller Court was focused on answering the question of individual gun
ownership rights, so the majority opinion had to look outside the
congressional debates for evidence in this regard, and the Court devoted
most of its opinion to sources other than the legislative history of the
Amendment.
29
Even so, both the majority opinion in Heller and the dissent from
Justice Stevens devote some discussion to what they called the
“conscientious-objector clause,” and it deserves a bit more attention.
30
The draft of what is now the Second Amendment that was debated in and
adopted by the House of Representatives included a clause exempting
those who are “religiously scrupulous” from bearing arms; the Senate
dropped the clause, for unknown reasons.
Both Heller opinions get some things wrong, and both leave some
significant unanswered questions when they move on to other issues.
Justice Scalia wrote:
Justice STEVENS places great weight on James Madison’s inclusion
of a conscientious-objector clause in his original draft of the Second
Amendment: “but no person religiously scrupulous of bearing arms,
shall be compelled to render military service in person.” He argues
that this clause establishes that the drafters of the Second Amendment
intended “bear Arms” to refer only to military service. It is always
perilous to derive the meaning of an adopted provision from another
provision deleted in the drafting process. In any case, what Justice
STEVENS would conclude from the deleted provision does not
follow. It was not meant to exempt from military service those who
objected to going to war but had no scruples about personal gunfights.
Quakers opposed the use of arms not just for militia service, but for
any violent purpose whatsoever—so much so that Quaker
frontiersmen were forbidden to use arms to defend their families, even
though “[i]n such circumstances the temptation to seize a hunting rifle
or knife in self-defense . . . must sometimes have been almost
overwhelming.” The Pennsylvania Militia Act of 1757 exempted from
service those “scrupling the use of arms” – a phrase that no one
28
See 5 ANNALS OF CONG. 749–52, 766–67 (1789).
29
See Heller, 554 U.S. at 579–98 (discussing various sources of interpretation
considered).
30
See id. at 589–90; id. at 660–61 (Stevens, J., dissenting).
9
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
464 MISSOURI LAW REVIEW [Vol. 88
contends had an idiomatic meaning. Thus, the most natural
interpretation of Madison’s deleted text is that those opposed to
carrying weapons for potential violent confrontation would not be
“compelled to render military service,” in which such carrying would
be required.
31
All this was in response to this passage of Justice Stevens’ dissent:
Madison’s initial inclusion of an exemption for conscientious
objectors sheds revelatory light on the purpose of the Amendment. It
confirms an intent to describe a duty as well as a right, and it
unequivocally identifies the military character of both. The objections
voiced to the conscientious-objector clause only confirm the central
meaning of the text. Although records of the debate in the Senate,
which is where the conscientious-objector clause was removed, do not
survive, the arguments raised in the House illuminate the perceived
problems with the clause: Specifically, there was concern that
Congress “can declare who are those religiously scrupulous, and
prevent them from bearing arms.”
25
The ultimate removal of the
clause, therefore, only serves to confirm the purpose of the
Amendment—to protect against congressional disarmament, by
whatever means, of the States’ militias. The Court also contends that
because “Quakers opposed the use of arms not just for militia service,
but for any violent purpose whatsoever,” the inclusion of a
conscientious-objector clause in the original draft of the Amendment
does not support the conclusion that the phrase “bear Arms” was
military in meaning. But that claim cannot be squared with the record.
In the proposals cited supra, both Virginia and North Carolina
included the following language: “That any person religiously
scrupulous of bearing arms ought to be exempted, upon payment of an
equivalent to employ another to bear arms in his stead.” There is no
plausible argument that the use of “bear arms” in those provisions was
not unequivocally and exclusively military: The State simply does not
compel its citizens to carry arms for the purpose of private
“confrontation,” or for self-defense. The history of the adoption of the
Amendment thus describes an overriding concern about the potential
threat to state sovereignty that a federal standing army would pose, and
a desire to protect the States’ militias as the means by which to guard
against that danger.
32
Justice Stevens’ argument here is straightforward—the fact that they had
a conscientious objector clause at all, and that many state versions
included one, suggests the entire Amendment was about militia service.
To make a similar argument from the modern era, the government now
has a mechanism—forms and a submission process—for conscientious
31
Id. at 589–90 (internal citations omitted).
32
Id. at 660–61 (Stevens, J. dissenting) (internal citations omitted).
10
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 465
objectors to designate themselves as such officially and legally, but it is
available only when one has received a military draft notice.
33
When I
registered for the selective service at age eighteen (back then this involved
filling out a card at the local post office), the postal clerk suggested that I
scrawl “conscientious objector” in pen across the back of the card, because
there was no place on the front of the card to designate oneself as such. I
later learned, of course, that my handwritten note at the time of registering
for the draft had no legal effect.
Justice Scalia responded to the dissent by arguing that the
Amendment must mean more than that, because Quakers did not carry
arms for self-defense either—he singled out one pacifist group and ignored
Mennonites, Dunkers, and other pacifist groups from the era. On this
point, Justice Scalia was only partly right; Quakers at the time had degrees
of rules and norms, and they were not “forbidden” to use arms to defend
families in the same formal sense that other activities were prohibited. In
the American Society of Friends in the 1770s and 1780s, military service
was grounds for excommunication (“disowning”) and fighting or violence
against another person could be, although an isolated incident of fisticuffs
would probably have drawn a less drastic sanction.
34
They did disown
many members for joining the military during the War of Independence.
35
At the same time, it would be incorrect to say that Quakers at the time
“forbid” gun ownership, at least in the sense of it being grounds for
disowning.
Justice Scalia was correct, however, that the accepted norms of the
Quaker communities would have discouraged it, and they could enforce
these norms socially. Quaker writings from the period indeed suggest that
they went about unarmed, leaving themselves vulnerable to attacks from
animals as well as humans. Further, we have many records of militias or
33
See 32 C.F.R. § 1630.11 (Class 1–A–0: Conscientious objector available for
noncombatant military service only); 32 C.F.R. § 1630.17 (Class 1–O–S:
Conscientious objector to all military service); 32 C.F.R. § 1636.1 (Alternative service
for conscientious objectors is available); Welsh v. United States, 398 U.S. 333, 340
(1970) (beliefs which are purely ethical or moral, even if not religious, which impose
a moral duty to refrain from participating in any war at any time, make conscientious
objector exemption applicable); United States v. Seeger, 380 U.S. 163, 187–88 (1965)
(upholding moral but irreligious objection to combat as valid under the exemption);
United States v. Macintosh, 283 U.S. 605, 633 (1931), overruled in part by Girouard
v. United States, 328 U.S. 61 (1946) (“. . .‘in the forum of conscience, duty to a moral
power higher than the state has always been maintained.’”); Arver v. United States,
245 U.S. 366, 389–90 (1918) (upholding religious and conscientious objection
exemptions to the Draft Act of 1917).
34
JACK D. MARIETTA, THE REFORMATION OF AMERICAN QUAKERISM, 1748–
1783, 4–31 (1984); PETER BROCK, PACIFISM IN THE UNITED STATES 81–132, 183–258
(1968).
35
See MEKEEL, supra note 19, at 152–311 (1996) (state by state survey of
disownments).
11
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
466 MISSOURI LAW REVIEW [Vol. 88
local authorities imposing distraints (confiscation of property) on Quakers
during the War for their refusal to participate or pay war taxes,
36
but it is
incredibly rare that these include confiscation of firearms.
37
And there are
stories from the colonial era of Quakers being surprised at the sight of a
Quaker family that owned guns, even for hunting.
38
Quakers were prolific
record-keepers and journal-writers. There is an incredibly large corpus of
surviving diaries and travel journals from eighteenth-century Quakers,
both because journaling was encouraged in their communities, and
because the sect would publish many of these texts after the diarist’s death
for the edification of their members.
39
The travel journals of Quaker
ministers sometimes lamented being stuck taking passage on a ship that
happened to be armed for self-defense. Apart from official rules and
disownments, Quakers could enforce unofficial or uncodified norms
through the refusal of “certificates” that members needed in order to travel
and visit other Quaker congregations, which commented on many details
of the person’s lifestyle through pre-marital inquiries, visitation (in-person
exhortations), and the pre-screening of their business contacts within the
community.
40
The full story is even more remarkable than Scalia probably knew.
Native Americans even outside Pennsylvania quickly learned that Quakers
were both unarmed, friendly, and useful trade partners, and there are
stories of Native American raids in other colonies where all the Quaker
homes would be spared, but everyone else killed and their houses burned.
41
Quaker ministers would ride circuit unarmed and without incident through
areas where Native Americans were routinely ambushing Europeans.
42
In
one widely-retold incident, a group of Native Americans ambushed two
settlers who were out walking in the wilderness, and immediately killed
the one carrying a musket, but spared the other, as he was unarmed—they
assumed he was a Quaker.
43
The survivor protested to the Native
Americans that his companion was also a Quaker, who in a moment of
spiritual weakness, had decided to arm himself when he traveled through
36
See, e.g., DAVID M. GROSS, AMERICAN QUAKER WAR TAX RESISTANCE 194–
97 (2d ed. 2011).
37
For an example, see id. at 111. They confiscated everything else that could be
useful to a military regiment, such as horses, wagons, kitchen pans and utensils, farm
tools, etc.
38
See SAMUEL BOWNAS, THE CAPTIVITY OF ELIZABETH HANSON 61 (2016 ed.).
39
See Betty Haglund, Quakers and Print Culture, in OXFORD HANDBOOK OF
QUAKER STUDIES 477–91 (2013).
40
See MARIETTA, supra note 34, at 5.
41
MARGARET E. HIRST, THE QUAKERS IN PEACE AND WAR, AN ACCOUNT OF
THEIR PRINCIPLES AND PRACTICE 336–40 (1923); BROCK, supra note 34, at 359–60.
42
See Hirst, supra note 41, at 337 (recounting stories from the Life of Thomas
Story, published in 1747).
43
See id. at 338.
12
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 467
a dangerous area.
44
The Native Americans responded that his death was
his own fault, for they could not help but assume he was not a Quaker
because he had a gun.
45
Repeated incidents of Native Americans sparing
Quakers but attacking non-Quaker Europeans led to resentment by their
non-Quaker neighbors, unsurprisingly, but merely confirmed for the
Quakers that they were right in their belief that being armed for self-
defense actually made someone less safe.
46
This was a point that I think
Justice Scalia missed: armed self-defense for the non-Quakers on the
frontier primarily meant defending against Native American attacks (or
reprisals), not defending against crimes like burglary from a criminal
element in their own community. In that sense, personal self-defense and
having a militia would have been hard to distinguish—the scenarios and
the enemies involved were the same, and the only difference was whether
one was ambushed or fighting alone or in a group.
Justice Scalia’s main argument against Justice Stevens was that the
“religiously scrupulous” clause could not have meant that the Second
Amendment pertained only to militia service, because the Quakers (and
other Founding-era pacifist sects he simply ignores) refused to keep or
bear arms for personal self-defense as well. Strangely, he relied on
Quakers’ refusal to use violence in self-defense as further support for the
idea that the Second Amendment must have included an individual right
to bear arms in self-defense besides the right of states to raise and regulate
armed militias. But if the “religiously scrupulous” clause also referred to
personal self-defense, what does that mean today in practical terms? The
majority’s reasoning in Heller implies some type of affirmative right to
exclude oneself or opt out from the right to self-defense. I have argued
elsewhere that the federal government should allow personal pacifists to
self-enroll in the national NICS system of those ineligible to buy
firearms—the database used for background checks when purchasing
guns.
47
During the War of Independence, colonies with an exemption in
their militia enactments for religious pacifists often required the
individuals obtain official certification as members in good standing of a
pacifist sect.
48
The government today should provide some sort of process
and certification (even if this were an emailed official confirmation) of
44
See id.
45
See id.
46
See id. at 339–43. See also RAYNER WICKERSHAM KELSEY, FRIENDS AND THE
INDIANS, 1655–1917, 77–78 (1917).
47
See Dru Stevenson, Going Gunless, 86 BROOKLYN L. REV. 179, 179–80
(2020). Ian Ayers and Fred Vars have argued for something similar, though their
primary focus is suicide prevention See IAN AYERS & FRED VARS, WEAPON OF CHOICE
(2020).
48
See BROCK, supra note 34, at 197–99 (describing the proof of membership
Quakers had to provide in order to avail themselves of a statutory exemption in the
relevant militia act); MEKEEL, supra note 19, at 251–58, 284, 318.
13
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
468 MISSOURI LAW REVIEW [Vol. 88
self-enrollment in the do-not-sell registry.
49
Similarly, Joseph Blocher has
argued that there is a right not to own guns that could have implications
for neighborhood associations and employers
50
—albeit based on other
areas of constitutional law rather than the “religiously scrupulous” clause.
There must be more to this than merely not exercising one’s right to
own a gun or defend oneself. Why did the First Congress, and so many
state legislatures in the Founding era, think it was necessary to codify an
exemption from the right to bear arms, if it meant nothing more than the
obvious fact that individuals were free to not use the right? And if the
conscientious objector clause meant nothing more than not exercising
one’s right to keep and bear arms, why was there such a heated argument
about it in the First Congress?
Justice Stevens, when discussing the conscientious objector clause,
also made some small mistakes. First, he overstates the “arguments”
raised in the House about the potential for the federal government to
falsely designate identifiable groups in the population as pacifists in order
to disarm them—only one member of Congress, Eldridge Gerry,
suggested that this might occur, and everyone else ignored him.
51
While
certain groups in the colonies had been disarmed (like Native Americans
and some foreigners), there was simply no historical example of a
government falsely designating a group as pacifists, much less disarming
them based on such a pretext. If anything, everyone knew that pacifists
had trouble convincing government officials that they were, in fact,
“religiously scrupulous against bearing arms,” as opposed to being either
afraid of fighting or sympathizers with the enemy.
52
The idea that the federal government in the new republic could, or
would, take it on itself to misattribute pacifism to some large, familiar
group of citizens like Anglicans or Presbyterians must have seemed
incredibly far-fetched to Gerry’s colleagues, and in fact the rest of the
debates focused on more realistic problems with accommodating
conscientious objectors. Gerry’s imagined scenario would only make
sense if the hypothetical group (being misclassified as pacifists) was large
enough that disarming them would deplete the state’s militia, and in that
case the misclassification would not be credible to anyone, because the
group would be too familiar to the general population. Misclassifying a
small, obscure group would not serve the purpose of depleting the state
militia, which Gerry set forth as the sinister purpose behind this
hypothetical action.
49
See Stevenson, supra note 47.
50
See Joseph Blocher, The Right Not to Keep or Bear Arms, 64 STAN. L. REV. 1,
23–25, 54 (2012).
51
See 5 ANNALS OF CONG. 749–52, 766–67 (1789).
52
See, e.g., MEKEEL, supra note 19, at 251–58.
14
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 469
It is also confusing that Justice Stevens would even bring up this
point, because Gerry’s arguments in the House debates actually support
Justice Scalia’s point that preserving militias was intertwined with
individuals keeping (possessing) guns. If Justice Stevens was correct that
there was nothing more to the Second Amendment than preserving the
state militias, it makes more sense that the fear would be that someday the
federal government would simply disband the militia—forbid their
assembly as a seditious conspiracy and treat them as our modern federal
government would treat a suspected terrorist organization.
The original congressional debates do have much to offer, however,
in terms of understanding the scope and public meaning of the Second
Amendment post-Bruen, even if the Heller majority did not find there any
direct answer to the question of individual-versus-collective rights that the
Heller Court had to decide. The next Part will undertake this inquiry, but
first I want to offer a few points of background about the Founding-era
Quakers that may not have been familiar to Justice Scalia or Justice
Stevens when they penned their opinions for Heller.
Founding-era Quakers functioned as a “society within the society.”
53
Quakers called themselves the Society of Friends, and during the War of
Independence, some prominent Quakers started using this rhetoric about
being a “society within the [larger] society” to justify their refusal to
cooperate with American “patriots” and the British alike.
54
After the War,
they were still a significant, tightly-knit, and influential force that the First
Congress wanted simultaneously to appease and to keep in check. An
important piece of context for the discussion that follows is the connection
between Quakers and the absence of a state militia. A historian of early
Pennsylvania history put it this way:
Pennsylvania stood alone among the British colonies for its complete
lack of a militia law or state-sanctioned military service. Under
Quaker Party rule, which was able to maintain legitimacy up to the
Revolution because of its inclusiveness and tolerance, religious
53
CRABTREE, supra note 14, at 4. Crabtree argues that Quakers “during this
period the Society of Friends formed a “holy nation”: a transnational community of
like-minded believers united in opposition to unholy governments and laws.” Sarah
Crabtree, Quaker, Whaler, Coward, Spy! William Rotch and the Age of Revolutions,
AGE OF REVOLUTIONS (Mar. 28, 2016), https://ageofrevolutions.com/2016/03/28/
quaker-whaler-coward-spy-william-rotch-and-the-age-of-revolutions/
[https://perma.cc/3NNL-MNTA].
54
RICHARD GODBEER, WORLD OF TROUBLE: A PHILADELPHIA QUAKER
FAMILY’S JOURNEY THROUGH THE AMERICAN REVOLUTION 126–29 (2019) (describing
public statements of Henry Drinker).
15
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
470 MISSOURI LAW REVIEW [Vol. 88
conscience and personal liberty trumped any perceived obligation to
the common defense.
55
For the last few decades before the War of Independence, official state-
sponsored pacifism had become the primary source of political
controversy
56
—perhaps second only to the troubled relationship with
Penn’s non-Quaker heirs, known as the Proprietors, and even these
controversies overlapped—and was arguably the driving force behind the
new state constitution in 1776, which represented the complete triumph of
the anti-Quaker party.
57
The long period of pacifist governance had also
been a source of contention with neighboring colonies when they would
request military help (militia detachments) from Pennsylvania in their own
conflicts, especially with the Native American population.
58
III. THE CONGRESSIONAL DEBATES ABOUT THE SECOND
AMENDMENT
James Madison first tried to introduce a long list of proposed
amendments from the states in May 1789,
59
but after extended debate
about whether amendments were premature and whether to incorporate
them into the body of the existing Constitution or as an appendix at the
end, Congress finally decided in late July to appoint a committee with one
member from each state to re-draft the amendments and make a report.
60
Comprising this committee were Madison himself as the Virginia
representative, as well as Abraham Baldwin (GA), Egbert Benson (NY),
Elias Boudinot (NJ), Aedanus Burke (SC), George Clymer (PA), George
Gale (MD), Nicholas Gilman (NH), Benjamin Goodhue (MA), Roger
Sherman (CT), and John Vining (DE).
61
Five of these men, plus seven
others, would speak when the House as a whole debated the amendments,
55
NATHAN ROSS KOZUSKANICH, “FOR THE SECURITY AND PROTECTION OF THE
COMMUNITY:” THE FRONTIER AND THE MAKINGS OF PENNSYLVANIAN
CONSTITUTIONALISM, Doctoral Dissertation, Ohio State University at 4 (2005)
(hereinafter FOR THE SECURITY AND PROTECTION OF THE COMMUNITY).
56
See id. at 15.
57
See generally id.
58
See Nathan R. Kozuskanich, Pennsylvania, the Militia, and the Second
Amendment, 133 PENN. MAG. OF HIST. & BIOGRAPHY 119, 121–24 (2009). I will use
the term “pacifism” throughout this paper, though the term is anachronistic—it was
not widely used at the time, and Quakers referred to their commitment to nonviolence
as the “peace testimony.”
59
See Uviller & Merkel, supra note 12, at 496.
60
See id.; 1 ANNALS OF CONG. 685–90 (Joseph Gales & William Seaton eds.,
1789).
61
See Jason Mazzone, Unamendments, 90 IOWA L. REV. 1747, 1778 n.147
(2005).
16
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 471
as discussed in what follows. This select committee (which I will refer to
as the drafting committee) submitted their report on July 28, 1789, and
Congress finally took up debate on August 13.
62
The committee had rewritten the text of what became the Second
Amendment.
63
It changed Madison’s original “well-armed militia” to
“well-regulated militia,”
64
and added a clause qualifying the militia as
“composed of the body of the people.”
65
The committee also substituted
“free state” where Madison had written “free country,”
66
probably as an
accommodation to anti-federalists, who were concerned about protecting
states’ rights. It had rearranged the clauses so that the “well-regulated
militia” clause came first,
67
a move that became significant in the Heller
decision, as Justice Scalia designated it the “prefatory clause.”
68
The
change that elicited the most discussion in the House debates that would
follow was dropping “serve in person,” from the “religiously scrupulous”
provision at the end, “suggesting that religious pacifists might well have a
constitutional right not only to avoid militia duty, but to avoid paying for
a substitute as well.”
69
On August 17, 1789, the proposition that became the Second
Amendment was introduced for discussion this way:
The House again resolved itself into a committee, Mr. Boudinot in the
chair, on the proposed amendments to the constitution. The third
clause of the fourth proposition in the report was taken into
consideration, being as follows: “A well-regulated militia, composed
of the body of the people, being the best security of a free state, the
right of the people to keep and bear arms shall not be infringed; but no
person religiously scrupulous shall be compelled to bear arms.”
70
A. Elbridge Gerry (MA)
Elbridge Gerry from Massachusetts spoke first. His opening volley
was the longest statement in the debates on the Second Amendment. Gerry
had a reputation for being tediously long-winded and confusing in his
62
See Uviller & Merkel, supra note 12, at 499.
63
See id.
64
See id.
65
See id.
66
See id.
67
See id.
68
See D.C. v. Heller, 554 U.S. 570, 577–78 (2008).
69
See Uviller & Merkel, supra note 12, at 499.
70
1 ANNALS OF CONG. 749–52 (August 17, 1789), reprinted in 5 THE
FOUNDERS’ CONSTITUTION 210–11 (Philip B. Kurland & Ralph Lerner eds., 1987)
(hereinafter Annals, with Kurland & Lerner edition page numbers).
17
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
472 MISSOURI LAW REVIEW [Vol. 88
oratory.
71
He began: “Well, this declaration of rights, I take it, is intended
to secure the people against maladministration of government. But the
final clause would allow those in power to destroy the constitution itself,
because they can declare those who are religiously scrupulous and prevent
them from bearing arms.”
72
Gerry—probably best remembered today for his name being
memorialized in the verb “gerrymander”
73
—was paradoxically both an
anti-federalist and an anti-populist.
74
A few weeks earlier, in Congress, he
had initially opposed the introduction of the draft Amendments from a
special committee, proposing instead (unsuccessfully) that Congress
consider all the amendments that the states had proposed.
75
Gerry’s home
state of Massachusetts had significant outstanding war debts that they
needed the federal government to assume, though southern states were
opposed to this.
He continued:
71
See MAIER, supra note 8, at 51 (“. . .At the convention he was, according to
William Pierce, ‘a hesitating and laborious speaker’ – he struggled with a stammer –
who nonetheless spoke extensively but was ‘only sometimes clear in his
arguments.’”); STEWART, supra note 7, at 114 (“. . .[Gerry spoke at the Constitutional
Convention] in the stammer that one delegate mocked as a ‘profusion of those hems
that never fail to lengthen out and enliven his oratory’. . . .”).
72
Annals, supra note 10, at 210.
73
See Paul V. Niemeyer, The Gerrymander: A Journalistic Catch-Word Or
Constitutional Principle? The Case In Maryland, 54 MD. L. REV. 242, 252–53 (1995)
(detailed account of the origin story for the word “gerrymander”); see also Jamal
Greene, Judging Partisan Gerrymanders Under The Elections Clause, 114 YALE L.J.
1021, 1042 (2005) (“Although the first gerrymander is often reported as the
meticulously crafted districting scheme engineered by the Massachusetts legislature
and approved by the eponymous Bay State governor Elbridge Gerry in 1812. . . .”);
Mitchell N. Berman, Managing Gerrymandering, 83 TEX. L. REV. 781, 785 (2005)
(“The very term ‘gerrymander’ is nearly 200 years old – having been coined in 1812
in reference to Massachusetts Governor Elbridge Gerry and the salamander-like
district he helped to create-- and the practice much older still.”); Michael E. Lewyn,
How To Limit Gerrymandering, 45 FLA. L. REV. 403, 406 (1993) (“After the bill was
signed into law by Democratic Governor Elbridge Gerry, a Boston newspaper
described the plan as a ‘gerrymander‘ by combining Governor Gerry’s name ‘and the
salamander, which the most convoluted senate district was said to resemble. Ever
since 1812, the term ‘gerrymander’ has been used to describe highly partisan
redistricting plans.”); David L. Anderson, When Restraint Requires Activism: Partisan
Gerrymandering and The Status Quo Ante, 42 STAN. L. REV. 1549, 1550–51 (1990)
(“The Boston Gazette, describing the redistricting plan, coined the now infamous
term, ‘Gerrymander,’ after Elbridge Gerry, the Democratic governor, and the
salamander, which the most convoluted senate district was said to resemble.”).
74
STEWART, supra note 7, at 220.
75
See GEORGE C. ROGERS, JR., EVOLUTION OF A FEDERALIST: WILLIAM
LOUGHTON SMITH OF CHARLESTON (1758-1812) 176 (1962).
18
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 473
What, sir, is the use of a militia? It is to prevent the establishment of
a standing army, the bane of liberty. Now, it must be evident, that,
under this provision, together with their other powers, Congress could
take such measures with respect to a militia, as to make a standing
army necessary. Whenever Governments mean to invade the rights
and liberties of the people, they always attempt to destroy the militia,
in order to raise an army upon their ruins. This was actually done by
Great Britain at the commencement of the late revolution. They used
every means in their power to prevent the establishment of an effective
militia to the eastward. The Assembly of Massachusetts, seeing the
rapid progress that administration were making to divest them of their
inherent privileges, endeavored to counteract them by the organization
of the militia; but they were always defeated by the influence of the
Crown.
76
At that point, Rep. Joshua Seney of Maryland, interrupted Gerry to ask
wryly, “What question there was before the committee, in order to
ascertain the point upon which the gentleman was speaking.”
77
Rep. Gerry replied that he was trying to propose a motion to edit the
“religiously scrupulous of bearing arms” clause, though he did not want to
remove it. He added,
No attempts that they [i.e., the colonial Assembly of Massachusetts]
made were successful, until they engaged in the struggle which
emancipated them at once from their thraldom. Now, if we give a
discretionary power to exclude those from militia duty who have
religious scruples, we may as well make no provision on this head.
78
He then explained that he wanted the words to say, “. . .persons belonging
to a religious sect scrupulous of bearing arms.”
79
In other words, he wanted the text to specify up front which pacifist
groups or churches were included, so that the federal government could
not maliciously designate other groups as such later as a pretext for
disarming them. In theory, it is also possible to read his proposed new
verbiage as specifying only those who were true members of groups that
taught pacifism as a tenet and required of their members, versus those with
76
Annals, supra note 10, at 210.
77
Id. This was probably a jab at Gerry’s reputation for being confusing and
tediously long-winded. See MAIER, supra note 8, at 51. Seney made no other
contributions to the discussion that day. His comments on other subjects suggest
Seney was a strict constructionist who had a narrow view of Congress’ powers under
the Constitution. See William C. diGiacomantonio, To Form the Character of the
American People: Public Support for the Arts, Sciences, and Morality in the First
Federal Congress, in INVENTING CONGRESS 215–16 (Kenneth R. Bowling & Donald
R. Kennion, ed. 1989).
78
Annals, supra note 10, at 210.
79
Id.
19
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
474 MISSOURI LAW REVIEW [Vol. 88
personal, individualized conscientious objections to war. This reading fits
less well with his speech, which was focused on the potential for using the
clause as a pretext for disarming large segments of the population at once,
not one-by-one.
80
As mentioned in the Introduction, this concern is puzzling. Even
though many anti-federalists at the time feared that an ascendant federal
government would become despotic and disarm the population to prevent
uprisings, no government entity had ever done what he describes (falsely
attributing pacifist tenets to a large religious sect), nor was it imaginable
that the federal government in the new republic would do so. While
England and the colonies certainly had a history of persecuting religious
groups—Gerry’s own state, Massachusetts, had for decades banned
Quakerism and had executed Quaker missionaries, including women—
there is no instance of the British or colonial governments falsely
designating sects as pacifist. The closest example I have found was when
the British government in 1660 briefly accused the nascent Quaker
movement of being involved with Fifth Monarchists (an attempted
military coup by a group trying to fulfill biblical prophecies about the End
Times).
81
The incident is somewhat relevant to our topic because it was
the occasion for the early Quaker leadership to assert for the first time—
officially, in submissions to the government—that their members
disavowed all violence and wars. Historians still debate about how many
Quakers were pacifists before this date, but from that point on, pacifism
became one of their core tenets, and serving in the military became
grounds for disownment or excommunication. But it seems unlikely that
Eldridge Gerry was thinking about this incident when he imagined the
situation in reverse—that instead of the government accusing pacifists of
mounting an armed insurrection, they would falsely label people as
pacifists who were armed and wanting to serve in their state militias.
More confusingly, Gerry claimed that sinister factions in the federal
government could undertake to abolish the state militias simply by
declaring the populace of certain states or regions to be “religiously
scrupulous of bearing arms,” even if those people were not pacifists and
wanted to serve in the militia or “keep and bear arms.” His point seems to
be that a federal declaration designating large sections of the populace as
religious pacifists would be an effective pretext to prevent local militias
from organizing—registering members and assigning them into regiments,
appointing officers, conducting regular training, stockpiling munitions,
80
See Uviller & Merkel, supra note 12, at 500.
81
See Rosemary Moore, The Early Development of Quakerism, in RICHARD C.
ALLEN AND ROSEMARY MOORE, THE QUAKERS: 1656-1723 20–23 (2018); CRAIG W.
HORLE, THE QUAKERS AND THE ENGLISH LEGAL SYSTEM 1660-1668 68–71 (1988).
20
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 475
and creating systems for emergency musters or calls to arms.
82
If he was
talking about a personal right to keep and bear arms, then he must have
been imagining that the federal government would falsely designate the
populace of an area as religious pacifists, then go door to door confiscating
the weapons of war that these “pacifists” owned. If the federal government
had in fact had the power to disarm so many people, the pretext would
have been an unnecessary step—they could simply label them all as
insurrectionists or sympathizers with some foreign enemy.
On the other hand, it is not clear whether he envisioned personal
disarmament (gun confiscations) or simply exclusion from participating in
the militia. Women, children, and some other groups like Native
Americans were excluded from the militias, so it seems more plausible
that Gerry was talking about exclusion from participation in militia service
as opposed to the federal government going door to door to confiscate
guns. He does not mention the problem of gun possession, unless there
was an accepted tacit assumption that weapon possession was permissible
only for militia members. Gerry’s main point was that he was worried
about disbanding state militias; he thought militias were the only hope of
blocking a standing federal army, and conversely, that the disbanding of
militias would be used to justify the creation or expansion of a standing
army to fill the gap left by the absence of state militias. In other words,
“[d]iscretionary authority to declare whole segments of the population
ineligible for service would vitiate the militia, or at the very least sap its
republican character.”
83
Remarkably, Gerry’s point elicited no real response from anyone else
in Congress. No one even acknowledged Gerry’s far-fetched claim that
the federal government might start declaring other religious groups to be
pacifists as well. I take this collective shrug-off as evidence that his
suggestion seemed completely fanciful to everyone else. The debate
proceeded on the “religiously scrupulous” clause, but it took a different
turn. It is worth noting that “Gerry’s hostility arose not from any contempt
for those of tender conscience—in fact he proposed replacing the draft
language with a clause more narrowly tailored to protect exclusively those
belonging to religious sects scrupulous of bearing arms—but from his
arch-antifederal and republican principles.”
84
Some background on Gerry may add important context to his remarks
about the proposed Amendment. Before this, Gerry had spoken
extensively about the dangers of the federal government and ad-hoc
militias at the Constitutional Convention, and a few months after the
82
See id. (“Gerry feared that the proposed clause would empower the federal
government to declare per se rules as to conscientious ineligibility, thereby excluding
whole groups from military service and effectively disarming the militia.”).
83
Id. at 501.
84
Id. at 500.
21
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
476 MISSOURI LAW REVIEW [Vol. 88
debates about the “religiously scrupulous” clause, Gerry spoke when
Congress returned to the topic of the Quakers for one of the most heated
debates of the session.
At the 1787 Constitutional Convention, two years before the debates
about the Second Amendment, “[w]ealthy merchant Elbridge Gerry of
Massachusetts, a member of the ‘codfish aristocracy’ north of Boston,
warned against the excess of democracy.”
85
Shay’s Rebellion, which had
occurred in his home state, influenced Gerry into becoming both an anti-
populist and also an anti-Federalist.
86
On the latter point, Gerry harbored
a mistrust of a federal Senate, a view he shared with other prominent anti-
federalists, but he “particularly detested the prospect of a national military
and standing army, a concern few others shared.”
87
At the same time, the
debacle of Shay’s Rebellion had made Gerry wary of purer forms of
democracy.
88
“In Massachusetts, he reported, ‘the worst men get into the
legislature.’ There were, he continued, ‘men of indigence, ignorance and
basements, who spare no pains however dirty to carry their point against
men were superior to the artifices practiced.’”
89
It is unlikely that Gerry
would have supported the Amendment if he thought it was designed to
ensure that lower-class citizens had easy access to firearms, or that the
threat of popular, armed insurrections would keep government power in
check.
His comments in the House in 1789 during the debate about the
Second Amendment echoed his prolix speeches about state militias
exactly two years earlier at the 1787 Constitutional Convention: “The
Massachusetts delegate pressed his military concerns on Friday, August
17th, as the Convention debated whether the national government might
send troops to oppose a rebellion even if no state government asked for
help. After the battles with captain Shays and his compatriots, the question
was hardly academic.”
90
Gerry’s speeches about militia concerns
continued for several days. “On August 18th, Gerry rose to express his
concern that the constitution did “not prohibit standing armies in times of
peace.”
91
He thought the Constitution’s omission on this point would turn
public opinion against it and prevent ratification.
92
He proposed “at least
limiting the standing army to 3,000 men in peacetime.”
93
He also
strenuously objected to granting Congress control over state militias, again
85
STEWART, supra note 7, at 63.
86
See id. at 200.
87
Id.
88
See id.
89
Id.
90
Id. at 221.
91
See VILE, supra note 7, at 102.
92
Id.
93
Id. at 103.
22
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 477
suggesting this would prove so unpopular that it could doom the chances
of ratification.
94
On August 23, 1787, he again insisted the national government power
should not have authority over state militias, which he called “a system of
despotism.”
95
At one point, he exclaimed that “he would just as soon see
the citizens of his state disarmed ‘as to take the command from the states,
and subject them to the general legislature.’”
96
This is particularly
striking, given his comments in the debates about the Second Amendment,
where he was the only congressman who mentioned a concern about the
potential disarming of sectors of the citizenry.
The Constitutional Convention had ignored his objection about the
military.
97
When the Convention concluded, Gerry refused to sign the
Constitution.
98
He offered eight reasons why he had decided not to sign
the constitution, mostly reiterating anti-federalist concerns he had raised
during the debates.
99
He left the Convention believing the nation was
headed toward an eventual civil war,
100
a fear he had expressed openly
when discussing whether state or national governments should appoint
officers of the militia.
101
In 1789 and 1790, Gerry clashed with Madison in Congress about
Hamilton’s proposal for a national bank and for the federal government
assuming the war debts of the states.
102
The pressing issue of state militia
debts is important background for the Second Amendment and its
protection of “well-regulated” militias and free states; militias necessarily
involved a public finance issue, and Congress at the time was haggling
over this very problem. On the issue of assumption (the federal
government taking on the unpaid debts to state militiamen), Gerry broke
from his usual anti-federalist views and forcefully advocated for
Hamilton’s vision of public finance; Madison had quoted Gerry’s
statements from the ratification conventions to highlight the seeming
contradiction.
103
In response, Gerry then attacked Madison’s citation of
reports or records from state ratification debates over the Constitution:
“Elbridge Gerry, meanwhile, had been even more strident; ‘The debates
94
Id. at 101.
95
STEWART, supra note 7, at 222.
96
VILE, supra note 7, at 102 (emphasis added).
97
STEWART, supra note 7, at 222.
98
MAIER, supra note 8, at 45.
99
VILE, supra note 7, at 104.
100
Id. at 105.
101
Id. at 102.
102
GIENAPP, supra note 9, at 295.
103
Id. at 212.
23
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
478 MISSOURI LAW REVIEW [Vol. 88
of the state conventions, as published by the shorthand writers,’ he
asserted, ‘were generally partial and mutilated.’”
104
It would be a mistake to take Gerry’s concerns about the “religiously
scrupulous” clause in the Second Amendment as a hostility toward
Quakers—though, as will be seen below, some of his colleagues in the
House were openly hostile to Quakerism. He sided with the Quakers on
what had become, at least by then, their most controversial position: the
abolition of slavery. A few months after the Second Amendment debates,
Quakers petitioned Congress to end the slave trade and the institution
itself, provoking outrage from the southern states’ congressmen. Elbridge
Gerry defended the Quakers’ petition,
105
though he recognized that slave
owners had become financially dependent on the free labor.
106
To summarize Gerry’s opening speech, he objected to the
conscientious objector clause, not because he thought these individuals
should be forced to serve in the military, but because he thought it would
be twisted into an excuse to other disfavored groups from either militia
participation or gun ownership. The first option, that he was concerned
that it would be used as a prohibition from militia service rather than a
permissive exemption, seems more likely given his digression into the
evils of a federal standing army. In other words, he was concerned that in
the future, a power-hungry federal government would twist the
conscientious objector clause into an excuse to deplete any state militia it
wanted by imposing the “scrupulous of bearing arms” status on citizens
who were not, in fact, scrupulous of bearing arms. Regarding the modern
debates about individual-versus-militia rights to bear arms, this tends to
support the view that the Founders thought the Amendment was about
protecting state militias from being supplanted by a federal standing army.
At the same time, his focus on the conscientious objector clause shows
that it was, in itself, significant to the Founders, and that the modern trend
of dismissing it might be a mistake.
B. James Jackson (GA)
James Jackson from Georgia spoke next, saying that he:
did not expect that all the people of the United States would turn
Quakers or Moravians; consequently, one part would have to defend
the other in case of invasion. Now this, in his opinion, was unjust,
unless the constitution secured an equivalent: for this reason he moved
104
Id. at 295.
105
JOSEPH J. ELLIS, FOUNDING BROTHERS: THE REVOLUTIONARY GENERATION
86 (2000).
106
Id.
24
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 479
to amend the clause, by inserting at the end of it, “upon paying an
equivalent, to be established by law.”
107
In other words, he thought pacifists were freeloaders. James Jackson was
an aggressive duelist and had even killed the governor of Georgia in a
duel.
108
Unlike many members of Congress, he had served in his state
militia against the British and in conflicts with Native American tribes.
109
In contrast to Gerry, Jackson was a staunch supporter of slavery,
110
and a
fierce opponent of federalist plans to assume states’ war debts (his own
state had none).
111
Given Jackson’s years of military experience and
history of duels, it is not surprising that he was unsympathetic toward
pacifists. Jackson was also opposed to any constitutional amendments,
including but not limited to the Second Amendment, and he had objected
to their introduction at the outset.
112
It is not surprising that he felt the
impulse to speak as soon as Gerry concluded, as they were on opposite
sides of issues each one was passionate about.
The debates about what became the Second Amendment replayed
themselves to some extent when the same Congress later took up a militia
bill, and Jackson’s comments then shed light on his contribution during
the debates about the Second Amendment. When the militia bill came up
107
Annals, supra note 10, at 210.
108
See, e.g., WILLIAM O. FOSTER, JAMES JACKSON: DUELIST AND MILITANT
STATESMAN 1757–1806, 5–6, 29–31 (1960) (duels with George Wells and duels with
Thomas Gibbons); see also THOMAS U.P. CHARLTON, THE LIFE OF MAJOR GENERAL
JAMES JACKSON 98 fn. (1809) (mentioning “many duels” due to his “strong
temperament”).
109
For Jackson’s militia battles with the British forces, see FOSTER, supra note
108, at 8–23; see also BORDEWICH, supra note 9, at 288. For his militia campaigns
against Native American tribes, see FOSTER, supra note 108, at 39–43.
110
See id. at 86–88. During the debate over the Quaker petition to abolish
slavery, Jackson accused the Quakers of being “fond” of intermarriage with freed
slaves, which he said would produce a “motley breed.” Id. at 87.
111
See id. at 82; see also BORDEWICH, supra note 9, at 188–89. One episode in
the debates about this issue is revealing about Jackson’s personality, reputation, and
tense relationship with Gerry:
The volatile James Jackson of Georgia – whose state was allotted the
comparatively paltry sum of $300,000 – cried that the entire funding
represented a vast and sinister plot by those who sought to absorb “the whole
of the state powers within the vortex of the all devouring general government.”
Do not impose upon Americans “this enormous and iniquitous debt [which]
will beggar the people and bind them in chains,” he cried, “bellowing and
rebellowing so loudly, with his eyes uplifted to heaven,” as one newspaper
reported, “that the Senate had to once again shut its windows to block him out
despite the summer heat. To this, Elbridge Gerry curtly retorted that Georgia
was such an “infant state” and had contributed so little to the Revolutionary
War that it deserved no more than it got.
Id.
112
See FOSTER, supra note 108, at 74–75.
25
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
480 MISSOURI LAW REVIEW [Vol. 88
for consideration, “Jackson seemed to relish the spotlight more than ever,
jumping up at every opportunity, needling haranguing and attacking with
his customary fervor everything that annoyed him.”
113
Historian Fergus
Bordewich summarizes Jackson’s views of the Quakers this way:
Jackson regarded the Quakers as hopeless idealists who “fancy that
wars are now to cease, and all its horrors to be dispelled like a mist
before the all-reviving ray of the sun of peace.” Where would it end?
How would Americans have fared if “this meek spirit of non-
resistance” had held sway while the states were under attack by the
British? If everyone who claims to refuse to bear arms as a matter of
conscience was to be exempted, Quakerism would speedily become
the national religion. “People will sit at home in the hour of invasion
enjoying domestic ease, while their neighbor is torn from his family
and exposed to perils and hardships.” What would become of
America’s people, the government, and the nation? They will be
oppressed, overturned, and scattered in the air.
114
The freeloading idea Jackson invoked here and during the debates about
the Second Amendment was a common complaint about the Quakers—
that they benefitted from public safety and national security but would not
contribute to it.
115
Most of the colonies had tried to force pacifists to pay
an equivalent (the cost of the militia hiring a mercenary in their place), but
the Quakers would simply not pay it. They were willing to suffer
imprisonment, acquiesce to confiscation of their property (called
“distraints”), or even death, rather than compromise in this way. Note that
Jackson did not expect the Quakers to succeed in converting everyone, but
he thought they were a big enough force—and perhaps had enough growth
potential—to create a significant problem with freeloading.
116
Freeloading is not a policy problem when it is merely at the margins.
During the subsequent debates about the militia act, Jackson had ended
one round of heated argument saying that people’s fear of legal sanctions
would always outweigh their religious convictions.
117
He thought there
113
BORDEWICH, supra note 9, at 288. Bordewich adds:
[Jackson] turned everything into a fight. Earlier, reacting to those who had
suggested that the proposed whiskey tax would discourage drunkenness, he
violently declared “that his constituents claim a right to get drunk, that they
have long been in the habit of getting drunk, and that they will get drunk in
defiance of all excise duties which Congress might be weak or wicked enough
to impose.”
Id.
114
BORDEWICH, supra note 9, at 289.
115
See FOSTER, supra note 108, at 85–86.
116
See id. at 88, where he exclaimed on the floor of Congress, “Let the Quakers
go to Africa and mix their blood and convert the natives there rather than cause
confusion here.” Id.
117
See BORDEWICH, supra note 9, at 290.
26
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 481
was no reason to accommodate religious conscientious objectors at all,
because if they faced punishment, they would get in line. On this point he
was clearly misinformed—many, many Quakers had steadfastly endured
confiscation of property, imprisonment, and beatings during the War over
their refusal to participate.
It is important to put Jackson’s comments about the “religiously
scrupulous clause” in the Second Amendment in context with his overall
mistrust of Quakers and resentment toward them. “He detected even more
sinister motives behind the benign smiles of the [according to Jackson]
misnamed Society of Friends.”
118
During the debates a few months later
over the Quaker abolitionist petitions:
James Jackson actually made menacing faces at the Quakers in the
gallery, called them outright lunatics, then launched into a tirade so
emotional and incoherent that reporters in the audience had difficulty
recording as words. The gist seemed to be that any decision to receive
the committee report was tantamount to the dissolution of the union.
119
In sum, Representative Jackson was focused on the conscientious objector
clause of the proposed Amendment, not on the issue of individual gun
ownership. In terms of the modern debates about militia-versus-individual
interpretations of the Second Amendment, this tends to support the militia
view. On the other hand, there is a third option that would find support in
Jackson’s comments—that the Amendment originally was primarily
intended to address conscientious objectors and pacifism (Jackson’s focus
in his comments) rather than pacifists being a minor tertiary point related
to state militia requirements. Jackson wanted to force conscientious
objectors to buy their way out of military service.
C. William Loughton Smith (SC)
Returning to the Second Amendment debates, after Jackson’s
comment, another southerner, William Loughton Smith of South Carolina
seconded Jackson’s proposed change that would require Quakers and
other conscientious objectors to pay the cost of hiring a substitute soldier
to serve in their stead. Smith suggested in this regard that they should
check about the verbiage used by other southern states in their proposals:
Mr. Smith, of South Carolina, inquired what were the words used by
the conventions respecting this amendment. If the gentleman would
conform to what was proposed by Virginia and Carolina, he would
118
ELLIS, supra note 105, at 82.
119
Id. at 97.
27
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
482 MISSOURI LAW REVIEW [Vol. 88
second him. He thought they were to be excused provided they found
a substitute.
120
Like James Jackson, William Loughton Smith hated the Quakers, as
evidenced by his long tirades against them in congressional debates the
following February and thereafter,
121
discussed more below.
Some background on William Loughton Smith may be helpful in
providing more context to his comments here. Smith, who at thirty was
one of the youngest members of the House,
122
was also unique among
members of Congress for having faced an embarrassing challenge, upon
his arrival, to his legal eligibility for his seat. His opponent in the election
(who lost to Smith) formally challenged Smith’s eligibility to serve in
Congress, claiming that Smith—who was born in South Carolina—had not
been a citizen for the requisite seven years, because Smith had spent most
of the Revolutionary War living in Europe and had not taken a loyalty oath
to the state upon his return.
123
The challenge implied that Smith was
“insufficiently patriotic, if not a closet Tory.”
124
“So when the house
assembled in New York in March-April 1789 they had to deal with a
petition challenging Smith’s eligibility.”
125
Smith laid out several
arguments in his own defense,
126
and was supported by James Madison
(who would eventually become Smith’s nemesis in the House),
127
Elias
Boudinot, and James Jackson.
128
This was the first contested election
brought before Congress.
129
Congress agreed to give Smith the seat he had
won, “but a whiff of impropriety clung to him notwithstanding.”
130
This experience may have contributed to Smith’s suspiciousness
toward his peers in the federal government about their potential to misuse
their authority.
131
He “worried about how a cavalier attitude about the use
of the Constitution and swollen executive power could threaten the
120
Annals, supra note 10, at 210.
121
See id.; see also ROGERS, supra note 75, at 197.
122
See BORDEWICH, supra note 9, at 62 (“A staunch Federalist, the youthful
Smith - he was only 30 - descended from a blended line of wealthy South Carolina
planters in Boston merchants, whose investments range from banking and shipping to
the slave trade.”). He was a lawyer and had married into “the most powerful political
clan in the state.” Id.
123
ROGERS, supra note 75, at 166–69.
124
BORDEWICH, supra note 9 at 62.
125
ROGERS, supra note 75, at 169–71.
126
Id. at 169–70.
127
Id. at 170.
128
Id
129
Id. at 171.
130
BORDEWICH, supra note 9 at 62.
131
GIENAPP, supra note 9, at 134.
28
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 483
institution of slavery.”
132
Smith therefore spent his first year in Congress
insisting that his colleagues adhere closely to the text of the Constitution:
“Smith’s relentless prodding moved the constitution to the very center of
discussion.”
133
He insisted that it was not enough “merely to claim that
the constitution could not have meant to deny the federal government of
power that happened to be convenient.”
134
During the early debates about
the president’s removal powers over agency officials, Smith took an
absolutist position that presidential appointees could be removed only by
impeachment.
135
“Many members believed that Smith’s suggestion
verged on the absurd, and few agreed that impeachment exhausted the
options for removal.”
136
Regarding the proposed Constitutional Amendments—including, but
not limited to the Second Amendment—Smith feared that allowing any
amendments would eventually lead to federal interference with slavery.
137
To friends, Smith expressed this concern about amendments opening the
door to abolitionism.
138
Smith confided to one friend that “Our state is
weak in the union—it certainly is—we have no other state to support our
peculiar rights, particularly that of holding slavery. The other states are
all against us. . . .”
139
Smith was overestimating South Carolina’s isolation
on this point, but it is worth keeping in mind, as we read his comments
about a specific Amendment, that he was wary of all amendments, even
ones that he might have otherwise supported, because he thought it would
open a door to something else he feared.
To the extent that the Second Amendment related to slavery—that is,
southern states needing their militias to suppress slave revolts or conduct
slave patrols—it is worth observing how strongly Smith supported the
preservation of the institution of slavery, and how he viewed the Quakers
as a serious menace. During one or more of his congressional speeches,
he openly threatened civil war if Congress ever tried to abolish slavery.
In one famous rant at his colleagues from northern states about the
Quaker petitions to end slavery, he quipped, “. . .[W]e made a compromise
on both sides. We took each other with our mutual bad habits and
respective evils, for better or worse; the northern states accepted us with
our slaves, and we adopted them with their Quakers.”
140
As one historian
132
Id.
133
Id.
134
Id. at 135.
135
Id. at 126–27.
136
Id. at 127.
137
BORDEWICH, supra note 9 at 125.
138
Id. at 92.
139
Id.
140
BORDEWICH, supra note 9, at 217.
29
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
484 MISSOURI LAW REVIEW [Vol. 88
put it, “Southerners were just as disgusted with the Quakers as northerners
professed to be with the South’s toleration of slavery.”
141
Smith was a Federalist, but he became an opponent of Madison the
next year over the “Dinner Table Bargain” to move the capitol to the
Potomac in exchange for the federal government assuming the war debts
of the states.”
142
“Smith certainly did not wish to see the government
lodged amid a band of Quakers.”
143
A fierce struggle over the permanent
location of the nation’s capital was looming in the background of the
debates about the Second Amendment, with its provision protecting
Quakers and similar religious pacifist groups. Smith, and presumably
others, specifically feared having the seat of government in a city
dominated by Quakers.
144
A pacifist-dominated capital city could be an
inviting target for foreign military attacks, or worse, could even exert
influence over national security and foreign policy.
When the Quakers submitted their petitions to Congress to end
slavery in February 1790, several of them visited congressmen
individually to lobby them.
145
William Loughton Smith received a visit
from Warner Mifflin himself—one of the leading abolitionists, regarded
as something like a prophet in Quaker circles—and they tried in vain for
hours to convince each other of their views on slavery.
146
Smith later
remarked on the Quaker efforts at moral suasion: “When we entered into
this confederacy, we did it from political, not moral motives, and I do not
think my constituents want to learn morals from the petitioners.”
147
Over objections, the petitions were assigned to a committee, which
by early March had prepared a report. Southern representatives expressed
“outrage that the forbidden subject was again being allowed into public
view. William Loughton Smith pointed up to the anti-slavery advocates
who had stacked the galleries ‘like evil spirits hovering over our
heads.’”
148
Eventually, the House voted down the petitions, but “the
episode left behind it a residue of southern resentment that bled corrosively
141
See id. (emphasis added).
142
See HERBERT E. SLOAN, PRINCIPLE & INTEREST: THOMAS JEFFERSON AND THE
PROBLEM OF DEBT 165–67 (1995).
143
See ROGERS, supra note 75, at 197.
144
See id. at 222 (“For Smith, who feared that the capital might long continue in
the land of the Quakers, this prospect [of an alternate location in the South] was indeed
pleasing.”).
145
See Maggie McKinley, Lobbying and the Petition Clause, 68 STAN. L. REV.
1131, 1155–56 (2016) (describing how Quakers lobbied the First Congress by
“loitering in the lobbies to approach members as they left formal proceedings, visiting
members’ temporary capital lodgings, and inviting members of Congress to discuss
the issue over meals.”).
146
BORDEWICH, supra note 9, at 204.
147
Id. at 201.
148
ELLIS, supra note 105, at 97.
30
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 485
into the funding debate.”
149
Smith blamed the melting support for the
assumption plan on the Quakers.
150
“Along with other key southerners,
Smith now felt seriously alienated from the Pennsylvanians, who had
defended the Quakers, and now adding outrage to insult, demanded the
nation’s future seat of government for their state.”
151
Returning to Smith’s comments during the Second Amendment
debates, James Jackson responded to Smith with the specific wording he
wanted: “No one, religiously scrupulous of bearing arms, shall be
compelled to render military service, in person, upon paying an
equivalent.”
152
He thought conscientious objectors should have to buy
their way out of military service the same way that many wealthy elites
might do.
D. Roger Sherman (CT)
Countering the arguments of William Loughton Smith and James
Jackson, Roger Sherman of Connecticut, the oldest member of Congress,
spoke next:
Mr. Sherman conceived it difficult to modify the clause and make it
better. It is well-known that those who are religiously scrupulous of
bearing arms, are equally scrupulous of getting substitutes or paying
an equivalent. Many of them would rather die than do either one or
the other; but he did not see an absolute necessity for a clause of this
kind. We do not live under an arbitrary Government, said he, and the
States, respectively, will have the government of the militia, unless
when called into actual service; besides, it would not do to alter it so
as to exclude the whole of any sect, because there are men amongst the
Quakers who will turn out, notwithstanding the religious principles of
the society, and defend the cause of their country. Certainly, it will be
improper to prevent the exercise of such favorable dispositions, at least
whilst it is the practice of nations to determine their contests by the
slaughter of their citizens and subjects.
153
This is a combined response to both proposed floor amendments from
James Jackson and Elbridge Gerry, though in reverse order. Regarding
Jackson’s proposal, Sherman argued that requiring payment in lieu of
militia service was pointless, because Quakers would simply refuse to pay
it.
154
Quakers began as a martyr movement, and their willingness to suffer
149
Id. at 224.
150
Id.
151
Id.
152
Annals, supra note 10, at 210.
153
Id. at 211.
154
Id.
31
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
486 MISSOURI LAW REVIEW [Vol. 88
or die for their convictions was well-known and an integral part of their
faith. Responding to Gerry, he contended that it would be inappropriate
to specify up front which groups were exempt, because in the War of
Independence, hundreds of Quakers (possibly even two or three thousand)
had abandoned the Society of Friends to enlist in the military.
155
There
was no reason to exclude such individuals, and Sherman predicted
(correctly) that in every war, some members of the pacifist sects would
sympathize with the casus belli and want to enlist, and designating their
sect by name might disqualify them from service. This lends support to
the idea that Gerry was not talking about door-to-door gun confiscation of
an entire region, but rather that the pacifist designation would exclude
large groups of citizens who wanted to serve in the militia from doing so.
Sherman therefore wanted to keep the conscientious objector clause in its
original form.
Gordon Wood describes Roger Sherman as one of the few Founders
who was a truly devout Christian,
156
which may have helped him
understand the Quaker resolve on matters of religious conviction. John
Adams, a longtime friend of Sherman, admired his puritanism and
honesty; Sherman “was so deeply religious that he objected to Congress
scheduling a meeting on Sunday.”
157
Adams recorded in his notes about
the First Congress that Roger Sherman spoke “often and long, but very
heavily.”
158
By 1789, Sherman “was one of the most experienced political men in
the country, having served in the Continental Congress, on its treasury
board, and on the committee charged with drafting the Declaration of
Independence. At the constitutional convention, he was the principal
author of the great compromise,”
159
which granted smaller states equal
representation in the Senate. Like James Jackson and Thomas Hartley, he
was part of a minority in Congress who actually brought personal
experience in the military to their debates about militias and the right to
bear arms. Sherman understood not only combat and strategy, but also
supply, equipment, and budgetary issues, having served “as commissary
for the Connecticut troops at Albany in 1759.”
160
Like Gerry and Madison,
Sherman had played a prominent role in the Constitutional Convention.
161
155
Id.
156
GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC
1789–1815, 577 (2009).
157
BORDEWICH, supra note 9, at 118–19.
158
DAVID MCCULLOUGH, JOHN ADAMS 85 (2001).
159
BORDEWICH, supra note 9, at 118–19.
160
E. WAYNE CARP, TO STARVE THE ARMY AT PLEASURE: CONTINENTAL ARMY
ADMINISTRATION AND AMERICAN POLITICAL CULTURE 1773-1783 20 (1984).
161
VILE, supra note 7, at 311–20 (2013).
32
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 487
Like many of his colleagues in Congress, Sherman approached
amendments grudgingly. “. . . Roger Sherman of Connecticut, a brilliant
but clumsy speaker and as stiff as starched linen, one of the House’s
Federalist lions, suggested that ‘taking up the subject of amendments at
this time would alarm more persons then would have their apprehensions
quieted thereby.’”
162
He insisted that any Amendments be appended to the
end of the existing Constitution, rather than being incorporated into it.
163
“The Constitution was probably imperfect, Sherman conceded, but what
in the world wasn’t? ‘I do not expect any perfection on this side of the
grave in the works of man.’”
164
He found himself on the drafting
committee for the Amendments and became its most forceful member,
165
albeit as a bit of an obstructionist; he “believed that was too much too soon
to tamper with the constitution, whose shortcomings, if it had any, would
surely be dealt with by conventional lawmaking. ‘Experience will show
best if it is deficient or not.’”
166
But by midsummer of 1789, he suddenly
changed his mind and “decided that Madison’s proposals were probably
harmless.”
167
At the time the Second Amendment was under
consideration, Sherman was privately suffering over a series of family
tragedies—one of his grown sons was an alcoholic and financially
destitute; another son, also bankrupt, had been accused of stealing from
his regiment during the war and died suddenly in 1789; and a third son had
also suffered recent business failures.
168
Sherman was being a realist in observing that the Quakers would not
yield to pressure or agree to pay a penalty that would support the military,
but his comments also demonstrate something deeper. The fact that
Sherman had originally resisted having Amendments at all highlights the
significance of his support for the original “religiously scrupulous” clause
and his view that it must remain unchanged. It illustrates the importance
of the clause that members of Congress who generally opposed
Amendments still thought it was important to keep this provision.
E. Jack Vining (DE)
Agreeing with Roger Sherman, John Middleton “Jack” Vining from
Delaware added:
162
BORDEWICH, supra note 9, at 90–91.
163
GIENAPP, supra note 9, at 180.
164
BORDEWICH, supra note 9, at 90–91.
165
Id. at 117.
166
Id. at 118.
167
Id. at 118–19.
168
See id.
33
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
488 MISSOURI LAW REVIEW [Vol. 88
Mr. Vining hoped the clause would be suffered to remain as it stood,
because he saw no use in it if it was amended so as to compel a man
to find a substitute, which, with respect to the Government, was the
same as if the person himself turned out to fight.
169
Vining, who had helped draft the wording of the proposed Amendments,
170
sympathized with the Quakers at least as far as being consistent in their
principles. While Sherman had taken a pragmatic approach—requiring
payment for a substitute would be ineffective, as the Quakers would
refuse—Vining suggested the Quakers have a point in thinking the two are
morally indistinguishable.
Like his fellow Federalist Roger Sherman, Jack Vining had initially
been skeptical about the timing of amending the new Constitution: “The
people are waiting with anxiety for the operation of the government . . . Is
not the daily revenue escaping us? Let us not perplex ourselves by
introducing one weighty and important question after another, till some
decisions are made.”
171
During the early debates about whether the
Constitution allowed the President to remove executive agency officials,
Vining thought the original Constitution allowed plenty of latitude. “The
‘constitution authorizes a complete government,’ he argued, it was the
only adequate way to understand its underlying purpose, and ‘leaves it to
the legislature to organize it on such principles as shall appear to be most
conducive to the public good.’”
172
He thought the more drastic proposed
amendments from the states, which called for major structural changes in
the government, would require a new Constitutional Convention, rather
than being suited for the amendment process.
173
After Madison’s second unsuccessful attempt to bring proposed
Amendments up for debate and a vote,
174
the select committee of eleven
members formed and met to redraft the proposed amendments.
175
Vining
chaired the committee.
176
His committee’s revisions to the militia
amendment evidence an effort to make it more focused on the idea that
“an organized, officially sanctioned body” would keep and bear arms.
177
169
Annals, supra note 10, at 210.
170
See Hon. Randy J. Holland, The Bill of Rights and John Vining, the First
State’s First Congressman, 9 DEL. LAW. 33 (1991) (discussing Vining’s contribution
to the redrafting of Amendments to bring to the House floor for debate).
171
BORDEWICH, supra note 9, at 93.
172
GIENAPP, supra note 9, at 137.
173
See Mazzone, supra note 61, at 1777.
174
BORDEWICH, supra note 9, at 117.
175
Id.
176
Id.
177
Id. at 123.
34
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 489
F. Michael Jenifer Stone (MD)
Michael Jenifer Stone from Maryland then posed an interesting
question: to what did “religiously scrupulous” refer?
178
Bearing arms? Or
something more? From the standpoint of the Heller opinion, this is a
tantalizing question—was he distinguishing “bearing arms” from being
“religiously scrupulous” of keeping arms? Or was he aware that the
various pacifist sects across the states had subtle differences in their
versions of pacifism, refusal to pay war taxes, and exceptions to their
pacifist rules? Or, perhaps he was concerned that the phrase “religiously
scrupulous” might refer to being extremely pious and religiously abstinent
from other activities? Of course, the Quakers themselves used the “to
scruple” (verb) and “scruples” (noun) for many of their distinctive
convictions of conscience, including their refusal to take oaths, eschewing
gambling or drunkenness, refusal to take off their hats indoors, or even
their boycott of the fruits and instrumentalities of slavery.
179
Stone was one of the most frequent and effective speakers in the
House during the First Congress,
180
even though his contributions to the
debates about what became the First and Second Amendments were a bit
paltry. At the same time, he was chronically ill and often absent.
181
The
rumor among his colleagues was that his ailments were symptoms of
venereal disease,
182
but Stone blamed it on the “air, the water, and the
scents of New York,” which he claimed “have made war upon my weakly
frame.”
183
Like Roger Sherman, Stone had opposed the incorporation of
amendments into the original Constitution, insisting instead for
amendments appended to the end: “How exactly would additions be
tracked in the public mind? Confusion was avoided, rather than
encouraged by amending through supplement.”
184
We should read Stone’s
contribution to the debate through the lens of his cautiousness about
amending the Constitution at all.
Regarding the Constitution, Stone was a strict constructionist—he
would later join Madison in opposing Hamilton’s proposal for a national
bank, arguing “that the constitution was a self-contained instrument and
that Congress’ primary job was not to exercise creative discretion, but to
178
Annals, supra note 10, at 211.
179
See, e.g., Richard Jordan, A Journal of Richard Jordan, in A JOURNAL OF THE
LIFE AND RELIGIOUS LABORS OF RICHARD JORDAN 13, 103, 107 (Philadelphia, Thomas
Kite, 1829); Job Scott, Last Letter from Ireland, in THE LETTERS OF JOB SCOTT 149,
150 (Friends Library Publ.); Thomas Shillitoe, Chapter XVII in JOURNAL OF THOMAS
SHILLITOE 188, 199–200 (Friends Library Publ.).
180
GIENAPP, supra note 9, at 226.
181
BORDEWICH, supra note 9, at 142.
182
Id. at 209.
183
Id. at 142.
184
GIENAPP, supra note 9, at 180.
35
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
490 MISSOURI LAW REVIEW [Vol. 88
decipher the tasks necessarily described for it by that instrument.”
185
Stone’s desire for clarification in the Amendment itself about the referent
for the “religiously scrupulous” clause was consistent with his usual
opposition to legislative discretion in interpreting and applying the
Constitution.
186
He would argue that “the sober discretion of the
legislature. . . was the very thing intended to be curbed and restrained by
our constitution.”
187
He thought there would be no limits on freewheeling
legislative impulses once they were allowed at all: “[I]f gentlemen are
allowed to range in their sober discretion for the means, it is plain they
have no limits.”
188
A point of relevance for the Second Amendment, though not about
the clause that the House debated, arose in one of the speeches made while
arguing about having parallel federal and state courts located throughout
the country: “If a man raised rebel army in New York, for instance, didn’t
that constitute a rebellion against a state? It had nothing to do with the
federal government.”
189
This seems to rebut the idea that the Framers
viewed the Second Amendment as a right to engage in armed insurrection
when the government adopted policies unacceptable to the armed citizens.
Also related to his views of militias and armed citizens was his
staunch opposition to the federal government assuming the debts. He
either thought forcing states to pay their own militia debts would force
states to stay within their means when it came to militia activities, or he
feared states externalizing their costs onto other states. Stone asked
rhetorically, “Why should Maryland, which had paid her debts, be obliged
to contribute toward South Carolina’s?”
190
Stone worried that finding
implied powers for Congress in the Constitution, rather than explicit grants
of authority, would remove any boundaries on the federal government’s
power.
191
“In Stone’s view, the idea that Congress had implicit as well as
express enumerated powers would destroy a core constitutional
principle.”
192
Further insight into Stone’s view of the “right to keep and bear arms”
comes from his comments later regarding the 1792 National Militia Act.
193
Stone insisted, “[E]very man who has joined our government, is bound to
185
Id. at 225.
186
Id. at 227.
187
Id.
188
Id. at 230.
189
BORDEWICH, supra note 9, at 142.
190
Id. at 210.
191
See Richard Primus, “The Essential Characteristic”: Enumerated Powers
and the Bank of the United States, 117 MICH. L. REV. 415, 472 (2018).
192
Id.
193
See Patrick J. Charles, The 1792 National Militia Act, the Second Amendment,
and Individual Militia Rights: A Legal and Historical Perspective, 9 GEO. J. L. & PUB.
POL’Y 323, 376 (2011).
36
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 491
the performance of militia duty.”
194
Particularly striking is the fact that
Stone used “self-defense” not to refer to individual self-defense against
criminal assaults, but rather the armed, organized, and democratic
secessionist movement of the War of Independence—the state militias and
the Continental Army.
195
His point was that mob violence of independent
insurrectionist groups—which he described as “outrage and violence”—
were a threat to democracy and were not included in the right to “self-
defense,” which he viewed as a right of the entire society, not a small
group, sect, or association.
196
G. Egbert Benson (NY)
Unfortunately, Stone’s important and fascinating question—the
answer to which would have been illuminating for future generations—
went unanswered, because Egbert Benson from New York jumped in with
another proposed floor amendment:
Mr. Benson moved to have the words “but no person religiously
scrupulous shall be compelled to bear arms,” struck out. He would
always leave it to the benevolence of the Legislature, for, modify it as
you please, it will be impossible to express it in such a manner as to
clear it from ambiguity. No man can claim this indulgence of right. It
may be a religious persuasion, but it is no natural right, and therefore
ought to be left to the discretion of the Government. If this stands part
of the constitution, it will be a question before the Judiciary on every
regulation you make with respect to the organization of the militia,
whether it comports with this declaration or not. It is extremely
injudicious to intermix matters of doubt with fundamentals. I have no
reason to believe but the Legislature will always possess humanity
enough to indulge this class of citizens in a matter they are so desirous
of; but they ought to be left to their discretion.
197
Egbert Benson, a close friend of Alexander Hamilton and John Jay,
“enjoyed a reputation as one of the foremost legislative draftspersons of
his day.”
198
Particularly relevant for our discussion here was his focus,
while in Congress and thereafter, on establishing the federal judiciary.
199
194
Id. at 339.
195
See id. at 376–77.
196
See id. at 377.
197
Annals, supra note 10, at 211.
198
WYTHE HOLT AND DAVID A. NOURSE, EGBERT BENSON: FIRST CHIEF JUDGE
OF THE SECOND CIRCUIT 1801-1802 41 (1987). Benson had been the first Attorney
General for the state of New York and had served for more than a decade in the New
York legislature and the Continental Congress, eventually becoming the first Chief
Judge of the Second Circuit Court of Appeals. See id. at 3.
199
See id. at 41–52.
37
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
492 MISSOURI LAW REVIEW [Vol. 88
It is not surprising, therefore, that his comments during the debate focused
on how the drafted text would be interpreted by the federal judiciary in the
future, and how surplusage in the proposed Amendment could
inadvertently generate endless litigation. In the years immediately
preceding his time in Congress, he had litigated a confusing case about
Loyalists’ property rights under the Treaty of Peace and conflicting state
statutes;
200
he was intimately aware of how higher-level legal texts like
treaties and constitutions could conflict with state legislation. Benson’s
primary contributions in Congress came behind the scenes,
201
but he could
sometimes offer ingenious solutions to move the body past gridlock on an
issue.
202
“Benson, like Madison, was concerned that the Constitution not
become cluttered with guarantees of rights that were not fundamental to
political liberty, and which would therefore routinely require balancing
against other rights and the demands of sound government.”
203
His
comments made some of the more sophisticated points of the entire debate,
though. First, he thought the legislature—whether Congress or the
states—could easily include an exception for conscientious objectors in
their militia enactments, as many had already done. Conscientious
objectors could be protected statutorily; moreover, the Constitution should
be reserved for fundamental or “natural rights,” and he did not think
refusal of military service was a natural right (Quakers would have
strongly disagreed with this, as they argued from the beginning that
following one’s conscience was the most fundamental or natural of all
rights). On the other hand, Benson clearly approved of legislatures
protecting the right by statute, and this would also make it easier to tailor
the exemption as necessary or repeal it if the privilege were abused.
Including it in the Constitution had important implications for judicial
review—he could foresee that a Constitutional exemption or express
“right not to” in the Second Amendment would mean that every
Congressional enactment related to the military would be subject to
judicial review to ensure it did not violate that right. It is not clear if he
foresaw the day when the Supreme Court would decide to protect non-
religious conscientious objectors from the draft, which eventually
happened in United States v. Seeger.
204
More likely, he anticipated that
the Quakers, many of whom practiced war tax resistance, would be entitled
(constitutionally) to exemption not only from war taxes, but from paying
whatever proportion of general taxes that went toward military spending.
Quakers refused to participate in national celebrations on Independence
200
See id at 25–30.
201
See GIENAPP, supra note 9, at 159.
202
Id.
203
Uviller & Merkel, supra note 12, at 501–02.
204
380 U.S. 163 (1965).
38
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 493
Day (July 4) or other war-related holidays.
205
At the time of these debates,
some states had implemented special taxes to try to pay their obligations
to veterans from the Revolutionary War—and some Quakers refused to
pay these as well. Perhaps he could foresee that eventually pacifists might
object to federal subsidies of the fledgling gun industry (such as Eli
Whitney’s plan for mass production of guns with interchangeable parts),
and he worried about the implications of their being able to assert an
affirmative constitutional right to these things.
Benson’s awareness of the roles of both the legislature and the
judiciary in interpreting the Constitution was consistent with his
arguments in Congress on other occasions;
206
he saw the Constitution as
an evolving concept. He argued that the Constitutional Convention could
“produce an unfinished constitution one that would serve only as the
beginning, not the end, of an evolving conversation.”
207
Benson thought
it was simply impossible for humans to create a perfect system of
government, or even a perfect foundational document for its legal system:
“It is not in the compass of human wisdom to frame a system of
government so minutely that it would close all gaps and eliminate all
silences.”
208
Benson maintained that legislatures were supposed to
exercise discretion and engage in creative gap-filling; they were obliged
“to take the Constitution by construction.”
209
The implications of his
theory for the Second Amendment were twofold: the details could be left
to the legislature, and any attempts at precision in the Constitutional
Amendments themselves would simply generate litigation, and thereby
generate ever-expanding judicial interpretations.
Benson’s motion was seconded (by someone unnamed in the record)
but when put to a vote, it narrowly failed by two votes. Twenty-two
members voted for his proposal, while twenty-four voted against it. This
is perhaps the best evidence supporting the idea that the Senate dropped
the clause intentionally as being out of place and/or unnecessary in the
Second Amendment—if almost half the House thought so, it is easy to
imagine at least a simple majority in the Senate would have held this view.
This is by no means proof of what the Senate was thinking, but it is
probably the best argument on the side of the those who think the clause
was dropped deliberately for being either problematic or redundant.
In the House, the majority voted against Benson and rejected his
argument, and it is possible that the majority of Congress reflected the
205
Devout Quakers would not close their businesses, decorate their homes, or
attend parades for Independence Day observances. See GODBEER, supra note 54, at
207; MEKEEL, supra note 19, at 244–45.
206
See GIENAPP, supra note 9, at 139.
207
Id. at 137.
208
Id.
209
Id. at 139.
39
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
494 MISSOURI LAW REVIEW [Vol. 88
views of most in the Senate or most of the public on this point.
Conversely, this vote could be taken as specific repudiation of the idea that
the Second Amendment does not include a negative right—a right not to
own guns, a right not to be associated with gun culture or military culture
in any way—because when Congress was confronted with this specific
point—that the clause implied a judicially-enforceable negative right—the
majority voted to keep the clause.
H. Elbridge Gerry (Reprise)
At that point in the debate, Elbridge Gerry proposed another floor
amendment, the first time the debates turned to other topics besides the
conscientious objector clause:
Mr. Gerry objected to the first part of the clause, on account of the
uncertainty with which it is expressed. A well regulated militia being
the best security of a free State, admitted an idea that a standing army
was a secondary one. It ought to read, “a well regulated militia, trained
to arms;” in which case it would become the duty of the Government
to provide this security, and furnish a greater certainty of its being
done.
210
The gist of this proposal was that the rest of the Second Amendment was
not merely a permission to do something (keep and bear arms) or an option
citizens had by right. Rather, he viewed the Second Amendment as an
affirmative duty of the states to maintain the militia even in peacetime, to
run weekend training drills—one weekend per month, or perhaps every
few months, was a custom in the colonies—so that they were combat-
ready whenever conflict erupted. There was a financial aspect to this—
militiamen were paid for their time spent at weekend drills, officers were
paid more, and equipment (including guns or bayonets for those who
lacked them) were provided at the state’s expense. Gunpowder and rounds
would be used in practice during the drills, and someone had to pay for
that. What is unclear is whether Gerry was implying that the federal
government should have to reimburse the states for these costs (which was
consistent with the position he was taking on war debts), or that the states
needed to budget for this. No one seconded his proposal—he did not have
even one colleague in agreement with him on this, even though some of
the state proposals included this very verbiage. It was recorded as “not
seconded.”
211
210
Annals, supra note 10, at 211.
211
Id.
40
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 495
I. Aedanus Burke (SC)
A confusing exchange then occurred. Aedanus Burke, the other
Representative from South Carolina, spoke for the first time that day and
said he would support Gerry’s proposal:
Mr. Burke proposed to add to the clause just agreed to, an amendment
to the following effect: “A standing army of regular troops in time of
peace is dangerous to public liberty, and such shall not be raised or
kept up in time of peace but from necessity, and for the security of the
people, nor then without the consent of two-thirds of the members
present of both Houses; and in all cases the military shall be
subordinate to the civil authority.”
212
Someone seconded this proposal (there is no record of who it was), which
seemed to turn the entire discussion back to the concerns about standing
armies that animated Gerry’s introductory remarks. It is worth
mentioning, as an aside, that Burke had served on the drafting committee
for the amendments, though his real contributions are unknown; it may
have struck some of his colleagues as strange to have someone from the
drafting committee propose such a complete rewriting of the amendment
during the floor debates.
213
Jack Vining raised a procedural problem with this proposal:
Mr. Vining asked whether this was to be considered as an addition to
the last clause, or an amendment by itself. If the former, he would
remind the gentleman the clause was decided; if the latter, it was
improper to introduce new matter, as the House had referred the report
specially to the Committee of the whole.
214
In other words, Gerry’s proposal had already failed, because no one
seconded it, and this was an improper motion to reactivate it and expand
it. On the other hand, it was inappropriate to add so much new content to
the proposals that had already gone through the drafting committee—this
was essentially a new Amendment requiring a two-thirds majority for any
enactment raising or maintaining a standing federal army—a significant
change from the existing War Powers clause in the Constitution. Vining
thought it was out of order.
Burke seemed flustered at this point:
212
Id.
213
See JOHN C. MELENEY, THE PUBLIC LIFE OF AEDANUS BURKE:
REVOLUTIONARY REPUBLICAN IN POST-REVOLUTIONARY SOUTH CAROLINA 169
(University of South Carolina Press, 1989).
214
Annals, supra note 10, at 211. For more details about Congressman Vining,
see supra Subpart E of this Part.
41
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
496 MISSOURI LAW REVIEW [Vol. 88
Mr. Burke feared that, what with being trammelled in rules, and the
apparent disposition of the committee, he should not be able to get
them to consider any amendment; he submitted to such proceeding
because he could not help himself.
215
He complained about the burden of the procedural formalities and that it
kept him from considering the Amendment he really wanted but then
conceded the point, obviously frustrated.
216
Put to an immediate vote
without further debate, Burke’s proposed floor amendments were defeated
by a whopping thirteen votes.
217
Burke’s proposal focused on limiting the national army rather than
protecting militia rights or an individual right of self-defense. He had a
military background; unlike some of his younger or wealthier colleagues
in Congress, Burke had served in both the Continental Army and his state
militia.
218
British forces had captured Burke’s garrison in the Charleston
militia during the occupation of that city in 1780;
219
years later he wrote
that he had spent sixteen months as a prisoner of war.
220
In terms of his
worldview, his modern biographer observes, “Burke tended to view his
world in terms of absolutes, corruption opposed to virtue, power opposed
to liberty. He had vision only for problems and his reactions were
essentially defensive.”
221
Aedanus Burke and Elbridge Gerry, as anti-federalists, had teamed
up before, as when they argued it was premature to consider
Amendments.
222
“Burke, who was outspoken and quick tempered, warned
that failing to discuss amendments satisfactorily ‘would occasion a great
deal of mischief,’”
223
even though he favored amending it in general.
224
Anti-federalists were more likely to call for a complete overhaul, or major
structural changes, to the Constitution.
As mentioned earlier, Burke had served on the drafting committee for
the Amendments,
225
but it became clear as the floor debates progressed
215
Id.
216
ROGERS, supra note 75, at 176–77.
217
See MELENEY, supra note 213, at 172.
218
See id. at 61.
219
See id.
220
See id.
221
Id. at 207.
222
See id. at 205 (Burke and Gerry objecting together to a newspaper excise tax);
see also MAIER, supra note 8, at 446 (“Even members of the House of Representatives
such as Massachusetts Elbridge Gerry and South Carolina’s Aedanus Dennis Burke,
who had long argued for amendments, thought Congress had more pressing issues to
settle first.”).
223
GIENAPP, supra note 9, at 192.
224
ROGERS, supra note 75, at 175.
225
See MELENEY, supra note 213, at 169.
42
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 497
that he had been frustrated with the limited proposals that came forth. He
was “initially quiet, as the house began working through the amendments
in the report, until it got to provision about speech, assembly, and
petitions . . . .”
226
(i.e., what became our modern First Amendment). At
that point, he launched into an extended diatribe, arguing that the proposed
Amendments were inadequate,
227
a type of appeasement measure or
political decoy. He waved around copies of some more substantial
structural amendments that states had proposed, which Madison’s
committee had seemingly ignored.
228
He likened them to “whipped
syllabub [a foamy dessert of the era], frothy and full of wind formed only
to please the palate.”
229
He wanted express provisions for civilian control
of the military, and a complete prohibition against standing armies in times
of peace.
230
He compared the final proposed amendments under
consideration to the tub thrown by sailors to distract whales in Jonathan
Swift’s 1704 Tale of a Tub—that is, they were a distraction or decoy.
231
An immigrant from Ireland, Burke was a well-known judge in South
Carolina,
232
who had gained fame by publishing a scathing attack on the
Society of the Cincinnati—a fraternity for Revolutionary War officers and
their descendants.
233
His opposition to the Cincinnati (which established
a lineage-based aristocracy for army officers) overlapped with his strident
opposition to professional standing armies, the point he raised during the
Second Amendment debates. Burke’s time in Congress had a downward
trajectory, at least in terms of his reputation and influence; “after an active
beginning, Burke was no more than a supporting player, somewhat erratic,
on occasion disruptive.”
234
As his modern biographer observes, “The
limited focus of his thought on major issues frustrated both his personal
ambitions and his capacity to represent effectively the interest of his
‘country.’”
235
As seen when Congress subsequently debated the Militia
Act, Burke wanted a military without officer elites: “The radically
democratic—except when it came to slavery—Aedanus Burke of South
Carolina argued that the ranks should be filled with ‘[r]ich and poor alike,
young old and young, the powerful and the powerless, without
distinction.’”
236
226
Id. at 170.
227
See id. at 171.
228
BORDEWICH, supra note 9, at 125.
229
Id.; MAIER, supra note 8, at 452; MELENEY, supra note 213, at 171.
230
BORDEWICH, supra note 9, at 125; MELENEY, supra note 213, at 171.
231
GIENAPP, supra note 9, at 166.
232
ROGERS, supra note 75, at 167.
233
Id.; MAIER, supra note 8, at 2.
234
MELENEY, supra note 213, at 164.
235
Id. at 207.
236
BORDEWICH, supra note 9, at 288.
43
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
498 MISSOURI LAW REVIEW [Vol. 88
It is possible to draw some larger inferences about the Second
Amendment from the Gerry-Burke floor proposals. The most cautious
inference is that at least some of the members of Congress thought they
were talking about the balance of power between state militias and the
federal army, not about personal self-defense. Even though their proposals
were ignored or roundly rejected, at most this suggests that there was no
single public meaning of the Second Amendment. Even if some thought
it was about self-defense, and others thought it was about slave patrols or
conquering more territory from the Native tribes, at least some thought it
was about offsetting or obviating a large, professional standing army.
Burke’s personal correspondence in the months that followed
supplies some additional context for his floor proposal to add more clauses
to what became the Second Amendment. In letters to friends in South
Carolina, he set forth his emerging theory of the federal Constitution—an
elaborate conspiracy theory, in fact.
237
Burke alleged that the recently-
ratified Constitution was merely one step or phase in a conspiracy by
power-hungry elites to reinstitute some type of tyrannical monarchy.
238
“By manufactured crises, scare tactics, and illegal action, the conspirators
had forced on the people a plan of government deliberately contrived to
deprive them of their liberty.”
239
Burke claimed in his correspondence,
which he probably hoped to publish at some point, that a type of coup or
second revolution had already occurred, benefitting the elites at the
expense of everyone else.
240
He therefore demanded “more information
on the background and proceedings of the Constitutional Convention in
Philadelphia.”
241
In November (three months after the debates about the
right to bear arms), he queried:
Who proposed it and why? Was there in 1786 such a condition of
anarchy, or spirit of licentiousness, or disregard of proper
governmental authority, sufficient to warrant fundamental change in
the structure of government? What were the reasons for economic
distress in 1786? Were there influential men unfavorable to a popular
government and favorable to a regal one? Was there any party inclined
to avail themselves of the popularity of a certain patronage
(presumably Washington) to bring about a revolution in government?
Did that certain percentage take any active part in framing the system?
Were the Cincinnati in evidence? The questions clearly implied that
the delegates exceeded their authority and that the people neither
237
See MELENEY, supra note 213, at 177.
238
See id.
239
Id.
240
See id.
241
Id.
44
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 499
intended or expected “that the Republican system of government
would be overturned or materially altered.”
242
Thus, even while serving his term in Congress, Burke was beginning to
circulate conspiracy theories and suggest the illegitimacy of the federal
government forged in 1787. Reading his comments regarding the Second
Amendment in this light, his proposal suggests that he thought the terms
of the Amendment, both as it was proposed and as it was adopted, were
insufficient to achieve their purpose or protect the security of a free state.
Some modern readers may see Burke’s populist conspiracy theories as a
reason to disregard his contributions to the debate as the inappropriate
interjections of a crackpot, but Burke was (1) not alone in his views, and
(2) even if his views did not represent those of the majority, it is telling
that no one objected that Burke was wandering wildly off-topic.
Burke’s hostility to the federal government, and federal military, is
also evident in his later correspondence with James Monroe about the
suppression of the Whiskey Rebellion by federal troops; he sympathized
with the rebels and lamented that the debacle played into the hands of the
federalists and provided an excuse for an increasingly centralized
government and military.
243
Regarding individual gun rights, one aspect of the issue in the
Founding era was the use of handguns in duels, and the extent to which
duels were viewed as a ritualized form of self-defense—at the least,
defense of one’s honor or social capital. Burke, like some of his colleagues
in the First Congress,
244
had personal experience with duels. In 1799,
Burke had acted as a second to Aaron Burr in a duel with John B. Church,
the brother-in-law of Alexander Hamilton.
245
An example of Burke’s
seemingly paradoxical views of dueling and gun rights came after his term
in Congress when Burke had returned to serving as a judge in South
Carolina, in a case before Burke, in which the winner of a duel was facing
prosecution for murder.
246
When he delivered the jury instructions at the
end of the trial, “Burke observed that, although dueling was in point of
Law and capital offense, yet such was the prevalence of custom that
dueling might be considered as the law of some countries.”
247
He
acknowledged that clergymen decried the practice as sinful and that
lawyers would “harangue against it with all the powers of eloquence,” but
242
Id.
243
ROGERS, supra note 75, at 270.
244
See supra note 108 and corresponding text regarding James Jackson’s duels.
Congressman Tucker (SC) had been badly injured in a duel with Senator Ralph Izard
(SC), who was William Loughton Smith’s father-in-law. See ROGERS, supra note 75,
at 128.
245
See MELENEY, supra note 213, at 28.
246
See id. at 252.
247
Id.
45
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
500 MISSOURI LAW REVIEW [Vol. 88
then reminded the jury, “Yet so long as mankind continued to consider the
fighting of as the only manner in which points of honor could be adjusted,
it was improbable that dueling would fall into disuse.”
248
This sounds like
a way of saying “laws against dueling do not work,” but then he charged
the jury that he would accept no verdict lighter than manslaughter.
249
Dueling was a common use for pistols at the time, and he thought this was
simultaneously understandable, inevitable, and punishable.
Given how much of the discussion in Congress on August 17
centered on Quakers and similar religious pacifists, it is somewhat
remarkable that Burke did not weigh in on the Quaker Factor at this time,
because he was openly hostile toward them on other occasions that
session. The following February, while Congress was in the middle of
debating Hamilton’s proposal for the federal government to assume state
militia debts from the war—which Burke strongly supported, because
South Carolina had overwhelming war debts
250
—the Quakers submitted
their three “memorials” or petitions about slavery and engaged in
aggressive lobbying of individual members of Congress.
251
Burke’s
response was a series of fiery speeches expressing his contempt for, and
fear of, the Quakers. Almost immediately, Burke was on his feet, along
with William Loughton Smith, to claim “the rights of Southern States
ought not to be threatened, and their property endangered, to please people
who would be unaffected by the consequences.”
252
Burke did not share
the admiration some of his colleagues had for Quaker austerity and
spiritual dedication: he “. . . did not believe they had more virtue or religion
than other people nor perhaps so much, if they were examined to the
bottom, notwithstanding their outward pretenses.”
253
He declared that the
pacifist Quakers were “blowing the trumpet of sedition” and said the
House gallery “should be cleared of all speculators and newspaper
reporters,”
254
as numerous Quakers sat in the public gallery to watch the
debates about their petitions.
The petitions went to a committee, which brought a report to the
House floor a few weeks later. On the morning of March 17, Burke rose
and “delivered a vitriolic attack on the substance of the memorials and the
248
Id.
249
See id.
250
See ROGERS, supra note 75, at 195. This was another point Burke had in
common with Elbridge Gerry of Massachusetts. See id. See also BORDEWICH, supra
note 9, at 210–11 (“The war had left Maryland completely unscarred, Burke seethed,
while South Carolina’s debts had been undertaken in the common defense. There is
not a road in the state but has witnessed the ravages of war. . . .”).
251
See McKinley, supra note 145, at 1155–56.
252
MELENEY, supra note 213, at 187.
253
Id. at 188.
254
ELLIS, supra note 105, at 84.
46
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 501
good faith of the Quakers.”
255
In a speech that would affect the remainder
of his career in national office, he exclaimed:
Who were these Quakers, Burke asked, who would make us believe
they came forward as volunteers in the cause of freedom? Were they
not, during the war, the devout friends and supporters of the most
abject slavery, a slavery attempted on their countrymen from the
disgraceful galling yoke of foreigners? They acted as spies for the
enemy, for no other purpose but to rivet the shackles of slavery on their
country. Now they have assumed another mask, that of enemies of
slavery, offering one hand in friendship, and wielding in the other a
torch to set flame to one part of the union, and sow discord throughout
the whole of it, holding out the pretext of emancipation and the South,
and selling the seeds of insurrection and public calamity in the
North.
256
Burke thought the Quakers posed a serious threat to the country and that
their emancipation efforts were in fact a ruse to foment division and the
unraveling of the country. Burke then compared the Quakers to the
deceptively-disguised Lucifer in Milton’s Paradise Lost,
257
at which point
Burke was called to order as wandering off-point and being too harsh and
inflammatory.
258
Burke responded he had a duty to expose the Quakers
for what they were: “a set of men, who, under the cloak of religion, with
the pretenses of a religious society, who are night and day carrying on the
arts and management of a political faction.”
259
Burke was called to order
a second time and stopped his tirade, but resumed it the next day.
260
Even though Burke did not join the criticisms of Quakers the previous
August when they debated the Second Amendment, his comments in
March support the idea that a number of Americans at the time viewed the
Quakers as a powerful, influential political faction, capable of forcing their
political will on others. If there was a genuine fear that Quakers might
orchestrate the abolition of slavery, it follows that there would be a similar
worry that Quakers could force a policy of state pacifism, at least in some
parts of the country, as they had done for decades in Pennsylvania. It is
worth considering whether the Second Amendment itself was, at least in
part, directed at Quakers, attempting to forestall the abolition of a state
militia should the Quakers achieve sufficient power again in any of the
states. To frame this question another way: from the standpoint of
someone in 1790, whether a congressman or a state legislator voting on
255
MELENEY, supra note 213, at 188.
256
Id. at 189.
257
See id.
258
See id.
259
Id.
260
See id.
47
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
502 MISSOURI LAW REVIEW [Vol. 88
ratification, would it have seemed more likely that Quakers could and
would try to orchestrate the dissolution of some state’s militia, or that the
federal government would try to do so? The conventional modern view is
that there was a fear (as Elbridge Gerry hinted in his introductory remarks)
that the federal government would try to dissolve one or more of the state
militias, but the Quakers had in fact already succeeded in demilitarizing
an entire state in recent memory, and their relentless lobbying against
slavery seemed to be gaining traction.
261
As Burke said on March 18,
“[The Quakers] are seeking to strip us of the little strength and resources
we have, and to weaken the southern states, weak and feeble enough
already; they are eagerly striving to excite private conspiracies, and finally
to raise the standard of insurrection in our country.”
262
As Burke saw it,
the committee report—even though it concluded that Congress lacked
authority to intervene in state regulation of slavery—confirmed the
apprehensions the southerners had about the Quakers’ intentions and
influence.
263
Burke had another opportunity to rail against the Quakers when
Congress debated about a permanent location for the federal seat of
government. Burke opposed Philadelphia as the permanent capital mostly
because there were so many Quakers there.
264
“I would [just] as soon pitch
my tent beneath a tree in which was a hornets’ nest,” than, as a
representative from South Carolina, have “the government in a settlement
of Quakers.”
265
Burke then reminded his colleagues in Congress about the
gallery sit-in the Quakers conducted during the debates about their
abolitionist petitions, as well as “their incessant seizing and obtrusions on
the members in their houses, in the streets, and in the lobby.”
266
As his
rhetoric grew more shrill, Burke was once again called to order.
267
“As
261
See McKinley, supra note 145, at 1155–56:
One of the first comprehensive lobbying campaigns was waged by the
Quakers, a community that still prides itself today on its vigorous legislative
advocacy. The Quakers coupled their attempts to petition the First Congress
to abolish slavery with an impressive lobbying campaign that included
“looming” over the galleys, loitering in the lobbies to approach members as
they left formal proceedings, visiting members’ temporary capital lodgings,
and inviting members of Congress to discuss the issue over meals. Not
surprisingly, the Quakers’ aggressive methods cultivated an incredible
hostility by members against any and all forms of lobbying. The Quakers’
conduct was unprecedented. Very few organized interests existed in the capital
at that time, and none circumvented the petition process in ways similar to the
Quakers.
262
MELENEY, supra note 213, at 190.
263
See id.
264
See id. at 199.
265
Id. at 200.
266
Id.
267
See id.
48
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 503
before, his excitable temper apparently carried him away. Except this time
there was no point to it at all.”
268
Burke’s attacks on the Quakers, along with a public feud he had with
Hamilton, cost him dearly in terms of his political reputation.
269
Regarding his time in Congress, Meleney concludes:
Thus, Burke failed to establish himself in a position of leadership or
influence, even with this in his own delegation. After three sessions,
he was an unpredictable, hot tempered, sometimes rough Irishmen
from South Carolina who had once written a famous pamphlet
attacking the Cincinnati. His relative isolation is confirmed by a mass
of negative evidence. None of the contemporary records of his
colleagues attach significance or weight to his presence.
270
Burke later changed his mind about the Quakers—or at least changed his
position. It is hard to tell whether this was due to a change of heart, an
attempt to rehabilitate his public image after he tarnished it by overreacting
to the Quakers in March 1790, or if it is just another example of Burke
being erratic. A little over a year after Congress debated the Second
Amendment, the body took up the Uniform Militia Act, which included an
exemption for Quakers, who had appeared in person to petition for an
exemption.
271
Surprisingly, “[t]he debate began when Aedanus Burke of
South Carolina spoke out in favor of exempting Quakers not only from
militia service but also from any attendant fines or payments for non-
service.”
272
Burke argued that it was unjust “to make those
conscientiously scrupulous of bearing arms pay for not acting against the
voice of their conscience.”
273
Burke went so far as to frame the issue of
making Quakers pay for a substitute (or a fine in lieu of service) as making
“a respectable class of citizens pay for a right to a free exercise of their
religious principles: It was contrary to the constitution; it was contrary to
that sound policy, which ought to direct the house in establishing the
militia.”
274
The comments of other members—James Jackson, Roger
268
Id.
269
See id. at 206 (“Even in Charleston, a leading paper commented that the
Quakers, as a society, ‘have been treated with a degree of acrimony and infective,
which ill becomes American legislators, in particular, and must inevitably lessen that
respect the ingenuity of their arguments might otherwise have inspired.’”).
270
Id. at 205.
271
See Mark Storslee, Religious Accommodation, the Establishment Clause, and
Third-Party Harm, 86 U. CHI. L. REV. 871, 911–12 (2019).
272
Jud Campbell, Compelled Subsidies and Original Meaning, 17 FIRST AMEND.
L. REV. 249, 272 (2018).
273
Id. (citing GEN. ADVERTISER (Phila.), Dec. 23, 1790, reprinted
in 14 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS at 115
(Linda Grant De Pauw et. al. eds., 1972)).
274
Id.
49
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
504 MISSOURI LAW REVIEW [Vol. 88
Sherman, and Jack Vining—mostly reiterated their comments when
debating the “religiously scrupulous” clause of the Second Amendment a
year or so before;
275
only Burke seems to have reversed himself.
The point is that we artificially narrow the scope of our inquiry into
the original Congressional meaning of the Second Amendment if we
confine ourselves to the comments made only on the two days that they
debated the Amendment itself. The terse comments congressmen made
on those two days touched on subjects that they returned to on other
occasions, elaborating on their views. It is a mistake to take the discussion
about the conscientious objector clause in isolation, because their
comments on other days in that first session of Congress show that they
connected Quakers and their pacifism with other complex policy issues,
such as the preservation of slavery, Native American affairs, the national
debt, and the location of the nation’s capital. These other discussions can
inform our reading of the discussions of the Second Amendment itself.
Modern legal writers may think of gun rights as a distinct, standalone right,
but for the Founders, weapons and war were inseparable from slavery,
conquest of Native American territories, and taxes, and the Quakers were
a primary voice of political dissent on each of these interrelated points.
J. Thomas Hartley (PA)
Returning to our discussion of the Second Amendment debates, after
Burke, Thomas Hartley from Pennsylvania (not a Quaker) objected to
Burke’s proposal on the merits, rather than procedure:
Mr. Hartley thought the amendment in order, and was ready to give his
opinion on it. He hoped the people of America would always be
satisfied with having a majority to govern. He never wished to see
two-thirds or three-fourths required, because it might put it in the
power of a small minority to govern the whole Union.
276
His concern was that supermajority requirements end up giving too much
power to a small number of holdouts in Congress; supermajority rules are
inherently undemocratic. The fascinating thing about this particular
exchange between Burke, Vining, and Hartley is that it lends credence to
the theory that the Second Amendment was primarily, or perhaps
exclusively, about state militias as a necessity to prevent a permanent
standing army. The text of the Second Amendment itself did not mention
anything about fractions or proportions, but no one suggested that
Hartley’s comments were completely off-topic. Rather, his reference to
supermajorities appears to be a reference to the number of votes needed to
275
See Storslee, supra note 271, at 912–14.
276
Annals, supra note 10, at 211.
50
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 505
declare war, which is pertinent if the discussion were about an amendment
related to state militias, but it would be completely off-topic if the
discussion were about individual rights to own and carry firearms. In that
sense, his argument for simple majorities, in the context of discussing the
Second Amendment, is more in line with the militia view. Hartley’s
comments are also consistent with the variation on the militia view
proposed here—that the Second Amendment was designed to prevent a
pacifist political faction, like the Quakers, from forcing the adoption of
pacifism as state or national policy, as they had done in Pennsylvania for
many decades.
Hartley, an ardent federalist,
277
(though on this point he was siding
with anti-federalists) was one of the few members of Congress who had
served in the army during the Revolutionary War.
278
He was a member of
the Society of the Cincinnati, which Burke had publicly attacked.
279
His
military service and election to the Pennsylvania Assembly in 1778, during
the period of feverish anti-Quaker politics, suggest he would not have been
a political ally of the Society of Friends.
280
Earlier in the session, he had opposed the strict constructionists, like
William Loughton Smith, and argued that the Constitution gave the
legislature flexibility: “‘The constitution has expressly pointed out several
matters which we can do and some which we cannot . . . but in other
matters is this silent and leaves them to the discretion of the
legislature.’”
281
He contended, “Since the Constitution gave lawmakers
no firm direction, they were at liberty to determine what ought to be.”
282
Hartley would have thought the legislature had freedom to regulate
militias and arms; he argued that constitutional silence on a point not only
gave Congress wide room to legislate under the “necessary and proper”
clause,
283
but that in the absence of legislation the president had broad
277
BORDEWICH, supra note 9, at 93.
278
See John W. Jordan, Biographical Sketch of Colonel Thomas Hartley of the
Pennsylvania Line, 25 PENN. MAGAZINE HISTORY & BIOGRAPHY 303, 303–05 (1901)
(detailing his military career); John B.B. Trussell, Jr and Harold L Meyers, The Battle
of Wyoming and Hartley’s Expedition, HISTORIC PENNSYLVANIA LEAFLET NO.40,
Pennsylvania Historical and Museum Commission (1976) (describing one of
Hartley’s more famous expeditions). Hartley’s official Congressional biography says
he “served in the Revolutionary War as lieutenant colonel of Irvine’s regiment and as
colonel of the Sixth Pennsylvania Regiment in 1776; commanded an expedition
against the Indians in 1778.” Thomas Hartley, 1748-1800, CONGRESSIONAL
BIOGRAPHY, available at https://bioguide.congress.gov/search/bio/H000299
[https://perma.cc/65HF-HJVK]. See also BORDEWICH, supra note 9, at 93 (noting
Hartley’s military background); GIENAPP, supra note 9, at 138 (same).
279
See Jordan, supra note 278, at 305.
280
See id. at 304.
281
GIENAPP, supra note 9, at 138.
282
Id.
283
Id. at 140.
51
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
506 MISSOURI LAW REVIEW [Vol. 88
executive powers, including the removal of presidential appointees at
will.
284
The debates reveal that three of the twelve congressmen to speak
during the debates over the Second Amendment—Gerry, Burke, and
Hartley—wanted to focus on the dangers of a standing federal army, to
which they seemed to think state militias were the antidote. The silence
of the other nine members makes it a matter of speculation as to what they
were thinking. On the other hand, if the others thought the Second
Amendment was about individual gun ownership rather than the question
of state militias versus a federal army, we would expect more interjections
that these three members were completely off topic. We can infer from
the majority voting in favor of the Amendment with its “religiously
scrupulous” clause intact that the majority were comfortable with this
language. After Hartley’s interjection and the voting down of Burke’s
proposal,
285
the debates ended for the day, and the House voted to approve
the draft version.
IV. POST-VOTE DEBATES ON AUGUST 20
They resumed three days later, on August 20—but only for a brief
exchange between Thomas Scott,
286
an anti-Quaker representative from
western Pennsylvania,
287
and Elias Boudinot, who had chaired the
committee and had pre-approved the language in the proposed
Amendment. Remarkably, the exchange occurred after the House had
already voted to approve the committee version of the proposed
Amendment.
288
Scott reiterated concerns about the conscientious objector
clause, albeit with some new arguments, while Boudinot insisted the
clause was necessary.
289
284
See id. at 160.
285
See ROGERS, supra note 75, at 176–77.
286
Scott expressed concern on another occasion about the situation with natives
on the frontier—he feared they would either combine as one continent-wide nation or
become subjects to Spain. See BORDEWICH, supra note 9, at 8.
287
See BORDEWICH, supra note 9, at 148 (describing Scott as a “huge, rough-
hewn Federalist from the state’s backcountry”). The United States House official
biography of Scott notes that he was from the western frontier of Pennsylvania
(primarily settled by Ulster Scots), and was first elected to the Pennsylvania legislature
as part of the new government (replacing the Quaker party) established in 1776; he
was a Federalist or pro-Administration. See United States House of Representatives:
History, Art, & Archives, SCOTT, Thomas, available at
https://history.house.gov/People/Listing/S/SCOTT,-Thomas-(S000186)
[https://perma.cc/692Z-TE2Y].
288
Uviller & Merkel, supra note 12, at 504.
289
Id.
52
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 507
A. Thomas Scott (PA)
On August 20, when debate resumed about the Amendment, Thomas
Scott wanted the “religiously scrupulous” exemption dropped:
Mr. Scott objected to the clause in the sixth amendment, “No person
religiously scrupulous shall be compelled to bear arms.” He observed
that if this becomes part of the constitution, such persons can neither
be called upon for their services, nor can an equivalent be demanded;
it is also attended with still further difficulties, for a militia can never
be depended upon. This would lead to the violation of another article
in the constitution, which secures to the people the right of keeping
arms, and in this case recourse must be had to a standing army. I
conceive it, said he, to be a legislative right altogether. There are many
sects I know, who are religiously scrupulous in this respect; I do not
mean to deprive them of any indulgence the law affords; my design is
to guard against those who are of no religion. It has been urged that
religion is on the decline; if so, the argument is more strong in my
favor, for when the time comes that religion shall be discarded, the
generality of persons will have recourse to these pretexts to get
excused from bearing arms.
290
He sandwiched three rather substantial objections into one. First, he
thought that excusing conscientious objectors from military service would
deplete the militia to the point that it could not function dependably.
291
This reveals how prevalent he perceived pacifism to be—this was not just
a tiny group or fringe sect, but enough to render the militia seriously
undermanned.
292
This led to his second point, which is very confusing.
He seemed to think there was “another article of the Constitution which
secures the right of the people of keeping arms.”
293
There is no other
290
Annals, supra note 10, at 211.
291
Professor George Mocsary, in his student note published in the Fordham Law
Review, took this statement by Scott to be a reiteration of the concern Elbridge Gerry
expressed at the opening of the discussion – that the government would disarm
individuals as a way of nullifying and abolishing the militia. See George A. Mocsary,
Explaining Away the Obvious: The Infeasibility of Characterizing the Second
Amendment as a Nonindividual Right, 76 FORDHAM L. REV. 2113, 2121 (2008). I think
Scott’s concern was the spread of pacifism and voluntary renunciation of firearm
ownership by individuals.
292
Scott expressed concern on another occasion about the need for militia
supplies to support the massive westward expansion, settlement, and conquest he
anticipated. Scott “warned that millions of people would be crossing the mountains
in years to come, and it would hardly be in the national interest ‘to have the country
settled by unprincipled banditti.’” BORDEWICH, supra note 9, at 92.
293
Josh Blackman and his co-author keenly observe that Scott uses “the right of
keeping arms,” which they take as strong evidence that “keeping arms” was a distinct
concept (ownership) from “bearing arms” (public carry). See James C. Phillips & Josh
53
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
508 MISSOURI LAW REVIEW [Vol. 88
clause in the Constitution that touches on this right. Some commentators
assume he was talking about the “keep and bear arms” clause in the Second
Amendment itself, but it is strange he would refer to this as being a clause
of the Constitution, as it was still merely a “proposition” in the House.
Perhaps he was mixing up the constitution of his home state—which did
have a standalone provision guaranteeing the right to keep or possess
weapons, apart from “bearing” them. Scott did not distinguish between a
right to keep arms for public safety (militia service) versus private use
(self-defense); rather, he distinguished between keeping arms for public
service and the rights of conscientious objectors.
294
“His concern was that
constitutional protection for objector status would undermine the sense of
public duty and obligation that alone rendered the right to arms
meaningful.”
295
Representative Scott’s last point is fascinating. He expected
American society to become entirely secular or irreligious. Moreover, he
foresees that eventually, courts would extend the exception to those with
purely philosophical or secular, rather than sectarian, objections to serving
in the military. Even though he was wrong about the disappearance of
organized religion, he was prescient on the point about non-religious
conscientious objectors receiving legal protection.
296
In a sense, this
argument has two prongs: the exemption for “religiously scrupulous”
individuals would become unnecessary and irrelevant when religion
disappeared from American society; and he assumed none of his
colleagues would ever want to give legal protection to non-religious
conscientious objectors—which could happen someday if they kept the
clause. As an aside, this raises a fascinating point for originalist
interpretive approaches to the Constitution. It suggests the Framers
simultaneously were aware that courts would extend or change its meaning
or application over time—that is, they knew this would be a “living
constitution” whose meaning would evolve—and at the same time, the
Blackman, Corpus Linguistics and Heller, 56 WAKE FOREST L. REV. 609, 664 (2021).
This is a counterargument to the idea that “keep and bear” is a hendiadys, a word pair
that has a single meaning (like “bequeath and devise” in other legal contexts). It is an
interesting example, of course, but an outlier – evidence rather than proof, in this
author’s opinion. It seems equally likely that “keeping arms” was a metonymy or
shorthand for the larger concept of “keep and bear.” On the other hand, the unique
situation on the Pennsylvania frontier – before, during, and after the War of
Independence – was a remarkable dearth of firearm ownership (discussed below),
even among non-Quakers, and the Whig constituents in Pennsylvania that Scott
represented wanted arms provided to them by the state or federal government. The
situation in Pennsylvania was not a problem with people being forbidden to own guns
they would otherwise have procured, but guns not being available, even though they
were fully legal.
294
See Uviller & Merkel, supra note 12, at 505.
295
Id.
296
United States v. Seeger, 380 U.S. 163 (1965).
54
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 509
Framers were willing to preempt and foreclose future generations from
adapting it in specific ways the Founders deemed unacceptable.
297
Representative Elias Boudinot spoke next and replied to Scott, but
before turning to that, some additional background about Scott can add
context to his statements about the “right to keep arms.” Among the
members of the First Congress, Thomas Scott was unique in two ways
relevant to the discussion of the Second Amendment. First, he was the
only congressman at the time from the westernmost frontier
298
—he was
born, raised, and lived his adult life in the southwest corner of what is now
Pennsylvania.
299
He had first-hand knowledge of the issues facing settlers
on the frontier, including the source of violence and frontier use of
firearms, and he was able to foresee massive settlement and rapid western
expansion in ways that representatives from coastal cities could not.
300
The second way in which Scott was unique was his uniquely bad personal
experience with local and state militias.
In January 1774, the Pennsylvania Governor had appointed Thomas
Scott, who was then thirty years old, to be Justice of the Peace for the
newly created Westmoreland County in southwest Pennsylvania.
301
The
Governor of Virginia, which claimed the area for its colony (the charter
supposedly set its western boundary as the Pacific Ocean), sent the
Virginia state militia to occupy nearby Fort Pitt and secure the area.
302
The
militia commander was John Connolly, who after arriving at Fort Pitt,
issued a militia muster for all Virginian settlers in the vicinity.
303
This
prompted one of the local Pennsylvania judges (not Scott) to have
297
A more famous exchange between Scott and another member of Congress is
revealing about his views of the judiciary. Scott, though apparently not a Quaker
(given his election to the anti-Quaker Pennsylvania Assembly in 1776), had adopted
the Quakers’ abolitionist ideals, and was president of his county’s abolition society.
During the debates about the Quaker petition for Congress to abolish slavery, Scott
interjected:
I look upon the slave trade as one of the most abominable things on earth. I do
not know how far I might go if I was one of the judges of the United States
and those people were to come before me and claim their emancipation, but I
am sure I would go as far as I could.
BORDEWICH, supra note 9, at 203. Rep. Jackson retorted, “I believe his judgment
would be of short duration in Georgia . . . perhaps even the existence of such a judge
might be in danger.” Id.; see also ELLIS, supra note 105, at 84 (recounting and
discussing the same exchange).
298
JOHN CALDWELL, THOMAS SCOTT: WESTERN FEDERALIST 99 (2008).
299
See id. at 1–2.
300
See, e.g., Scott’s speech On Western Lands, delivered in the House of
Representatives on July 13, 1789, a month before the House took up debate on what
became the Second Amendment, reprinted in CALDWELL, supra note 298, at 101–07.
301
See CALDWELL, supra note 288, at 2.
302
See id. at 3.
303
See id.
55
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
510 MISSOURI LAW REVIEW [Vol. 88
Connolly arrested, but he was soon released on bail and returned to Fort
Pitt.
304
Connolly then raised a militia force of 150 Virginians, which by
April 1774 entered and took in the county seat of Westmoreland County.
305
The Virginia militiamen arrested all the Westmoreland county magistrates
for illegally holding a Pennsylvania court in Virginia territory.
306
Thomas
Scott, who had become Justice of the Peace only four months earlier, was
one of those taken into custody by the Virginia militia.
307
He argued his
case unsuccessfully before the Virginia Governor (Lord Dunmore),
308
who
ordered him to pay an exorbitant fine and serve a years’ probation, during
which he must refrain from acting as a Pennsylvania magistrate.
309
Apparently unable to pay such a large sum, Scott remained in custody with
other Pennsylvania local officials for over a year. He wrote petitions to
the Governor of Pennsylvania to no avail.
310
In June 1775, the new
Pennsylvania sheriff of Westmoreland County led a posse of twenty men
in a raid on Fort Pitt; they freed the captives, including Thomas Scott, and
arrested Connolly, the leader of the Virginia militia there.
311
The next
year, when John Adams and the Continental Congress orchestrated the
installment of a new state government in Pennsylvania, under a new state
constitution, Thomas Scott found himself representing his county in the
Pennsylvania Assembly.
312
Once the new constitution was in place and a
new Assembly was seated, including Scott, one of their first actions was
to pass a new Militia Act.
313
When in Congress, his views on assumption
of war debts, and especially on soldiers who sold their vouchers, were not
in line with some of his fellow Federalists.
314
304
See id.
305
See id.
306
See id.
307
See id.
308
See id. at 4–5.
309
See id. at 4–5.
310
See id. at 5–6.
311
See id. at 6.
312
See id. at 7–8.
313
See id. at 8.
314
Thomas Scott opposed federal assumption of the states’ Revolutionary War
debts – an issue that divided the Representatives from Pennsylvania. See E. JAMES
FERGUSON, THE POWER OF THE PURSE: A HISTORY OF AMERICAN PUBLIC FINANCE
1776–1790 300 (1961) (discussing the opposition of Scott and others to the
assumption proposal; Scott wanted Congressional action postponed until the debt to
be “ascertained and liquidated,” which probably meant he wanted states to devalue
the debt by devaluing their wartime currency values). An issue related to the War debt
was what to do about soldiers who, desperate for cash and doubtful of ever being paid
for their service—had sold their I.O.U.s as securities to speculators. See BORDEWICH,
supra note 9, at 189–90. Everything about the militias and the “right to keep and bear
arms” touched on issues of the public fisc—Congress knew that the states and federal
government had overwhelming debts from the last war, so the cost of militia
56
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 511
A few months later, when the House considered the Quaker petitions
to abolish slavery, Scott defended their petition,
315
though there is no
reason to think he himself was a Quaker. There is no historical record of
Scott’s religious affiliation, including in his will and the fact that he was
willing to take loyalty oaths when he accepted state office in 1776.
316
Scott
echoed the remarks of others who defended the petitions and/or the
petitioners, “suggesting that the defining text was not the Constitution, but
the Declaration of Independence, which clearly announced that it was ‘not
possible that one man should have property in person of another.’”
317
One
confusing paradox about Scott was his open support for the abolition of
slavery (a possible indication of how much social influence Quakers
exerted on non-Quakers at the time) and his ongoing ownership of two
household slaves until the end of his life.
318
Overall, Scott’s comments support the view that the Second
Amendment was originally about state militias rather than personal
ownership of firearms. His concern about the conscientious objector
clause is that it would eventually apply to secular pacifists, and if enough
people invoked this exception, it would deplete a given state’s militia
enough to make a federal army a practical necessity by default. This
supports the idea that the Second Amendment was originally about
militias. His comments would also align with the specific variation on the
militia view set forth in this Article: the concern was not merely to prevent
a permanent federal army that would supplant state militias, but rather that
a pacifist faction might be numerous enough in some states to force the
dissolution of the militia there. Scott’s unique twist on this problem was
that he could foresee secular pacifists as a faction capable of doing this in
the future, with help from the courts, rather than religious pacifists doing
this, which was what the proposed text contemplated. I believe his point
about secular militia depletion necessitating a federal army in its place was
an appeal to other members of Congress who were particularly concerned
about the prospect of a permanent federal army. It is striking that his
experience of being taken captive by the Virginia militia had not soured
him on state militias in general, but I infer from this that he may have
blamed his misfortunate on the Pennsylvania militia’s failure to protect
him from a rogue militia posse from a neighboring state. If someone in
activities—paying men for their service time and buying weapons and supplies—was
painfully obvious. Thomas Scott expressed special contempt for soldiers who sold
their securities, comparing them on one occasion to “whores who have since wedded
to Mr. Speculator, by which they have lost all title to the honorable appellation of a
soldier.” Id. at 190 (internal quotations omitted).
315
ELLIS, supra note 105, at 84.
316
For his will, see CALDWELL, supra note 298, at 107–09. For his military
service, see id. at 98.
317
ELLIS, supra note 105, at 86.
318
See CALDWELL, supra note 298, at 65.
57
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
512 MISSOURI LAW REVIEW [Vol. 88
that era thought the Pennsylvania militia was undermanned and poorly
equipped with arms, it would have been logical to blame that on the long
period of Quaker pacifist control that had only recently ended and the
lingering dearth of militia volunteers and guns due to Quaker social and
commercial influence. Scott could imagine a similar scenario happening
again in the future with secular pacifists, whom he suggested could
become far more numerous than religious pacifists had been.
B. Elias Boudinot (NJ)
Returning to Elias Boudinot’s reply to Scott, it was Boudinot who
had read the proposed Amendment three days earlier to begin the debates,
and now offered the final word in the debates about the Amendment:
Mr. Boudinot thought the provision in the clause, or something similar
to it, was necessary. Can any dependence, said he, be placed in men
who are conscientious in this respect? [O]r what justice can there be
in compelling them to bear arms, when, according to their religious
principles, they would rather die than use them? He adverted to several
instances of oppression on this point, that occurred during the war. In
forming a militia, an effectual defense ought to be calculated, and no
characters of this religious description ought to be compelled to take
up arms. I hope that in establishing this Government, we may show
the world that proper care is taken that the Government may not
interfere with the religious sentiments of any person. Now, by striking
out the clause, people may be led to believe that there is an intention
in the General Government to compel all its citizens to bear arms.
319
Boudinot insisted the “religiously scrupulous” clause was necessary for a
pragmatic reason and an ideological one. As much as military types may
resent conscientious objectors and want to force them to serve despite their
scruples against it, such conscripts end up being useless in warfare,
because they simply will not fight. There were indeed many anecdotes in
circulation supporting his point—local militia leaders in the Revolution
who basically arrested Quakers who refused to enlist and forced them, in
chains, to march with the others toward the battle lines. The Quakers could
be surprisingly stubborn—in most such cases, the officers eventually gave
up and let the Quakers go, because they were deadweight for the regiment
and were demoralizing the other men by preaching pacifism to them along
the way. Others had died. Boudinot then offered a more transcendent
reason—it was important for the new federal government not to interfere
with citizens’ private religious beliefs and religious obligations.
Moreover, with the prospect of a long fight for ratification of the
amendments looming, it was important to reassure the public that the new,
319
Annals, supra note 10, at 211.
58
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 513
centralized federal government would not overreach in matters of personal
faith and conscience. Dropping the clause, he warned, would signal the
opposite.
Of all the comments and arguments made in the congressional
debates about the Second Amendment, Boudinot’s closing remark comes
the closest to addressing the idea of public meaning—the American
public’s understanding of what was being offered for ratification. The
implication of his closing remark is that he would have prioritized personal
conscience and legal protection of individual religious beliefs above
whatever they thought the Second Amendment was protecting.
Elias Boudinot owed his election to Congress to the Quaker
community in New Jersey.
320
Even though he had been President of the
Continental Congress for one term, when he ran for a House seat in the
new Congress, he won election only narrowly.
321
He campaigned directly
to West Jersey Quakers, telling them the alternative, if he lost, would be
“Scotch-Irish Presbyterians” who would persecute them and force them to
serve in the militia.
322
Quakers by then had started discouraging their
members (internally) from voting in elections at all.
323
Boudinot told the
Quaker community that the election presented an existential crisis for their
community, and if ever there should be an exceptional case in which they
cast votes, this was it.
324
Boudinot himself was not a Quaker; he was a
devout Presbyterian, descended from French Huguenots. In his later years,
Boudinot published religious books about eschatology and the Native
Americans being the Lost Ten Tribes of Israel,
325
as well as The Age of
Revelation, a rebuttal to Thomas Paine’s Age of Reason.
326
He was the
320
See GEORGE ADAMS BOYD, ELIAS BOUDINOT: PATRIOT AND STATESMAN,
1740–1821 154–55 (1952).
321
See id. George P. Schmidt, The First Congressional Election in New Jersey,
4 J. RUTGERS UNIV. LIBRARY 46, 48–50 (1941).
322
See id. at 48.
323
See id. at 50 (“The Peaceable Quaquer, says, ‘No, I don’t feel a Freedom,
Thee must excuse me, I never intend to interfere in Government-matters, it is against
my Principles.’”).
324
See Schmidt, supra note 321, at 49–50:
You don’t feel a ‘Freedom’[!] You will loose Your freedom, Your Liberty and
Your Property, nay more, Your Religion, if You do not; we Church People see
very clearly these Presbyters want to rule, and, then, there will be no other
Religion suffered in this Country, but Presbyterianism, the most arbitrary and
tyrannic of all Religions. [The opposing candidates] are bloody men, are men
for War, they want another War, that they may make their fortunes by distress
from the Quaquers, and, if they get into Congress, they will join with the New-
England-Congress Men and we shall have War & Bloodshed immediately.
325
See ELIAS BOUDINOT, A STAR IN THE WEST, OR, A HUMBLE ATTEMPT TO
DISCOVER THE LONG LOST TEN TRIBES OF ISRAEL (1816).
326
See BOYD, supra note 320, at 253.
59
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
514 MISSOURI LAW REVIEW [Vol. 88
first President of the American Bible Society,
327
and is credited with
inventing Thanksgiving as a federal holiday.
328
His closing remarks in the
congressional debates about the Second Amendment partly reflected the
importance he placed on personal faith, as he was unfashionably devout
for the time. At the same time, his comments reflected his central
campaign promise to the Quaker community in New Jersey: that he would
protect them from compelled military service.
Many years before, as a young lawyer, Boudinot had apprenticed
himself to attorney Richard Stockton, another prominent Revolutionary
War hero, signer of the Declaration of Independence, and member of the
Continental Congress.
329
Boudinot and Stockton each married the other’s
sister, and they became quite close.
330
The Stocktons had been a Quaker
family for generations, but Richard Stockton’s father had converted to
Presbyterianism in order to marry someone from that sect (Abigail); so
Richard Stockton (Elias Boudinot’s mentor and brother-in-law) had been
raised a Presbyterian, but his extended family would have been old-stock
Quakers. At the end of his life (around the time Boudinot was debating
the Second Amendment in Congress), Stockton asked to be buried in the
Quaker cemetery, next to his grandfather’s grave, which the local Quakers
allowed, making an exception from their usual practice. Stockton’s
daughter, Julia Stockton (Boudinot’s niece) married Benjamin Rush.
Boudinot probably understood Quakers and the peace testimony
better than most of his colleagues in Congress. Earlier, while Boudinot
was President of the Continental Congress, an entourage of Quaker elders
appeared at Nassau Hall in Princeton, where Congress was meeting
temporarily.
331
The Quaker delegation insisted on addressing the
Congress to request the abolition of slavery; over many objections from
others present, Boudinot had allowed it.
332
Just as the Quakers petitioned
the Continental Congress, they would later petition the First Congress (in
early 1790) to end the institution of slavery.
Just as the Quakers had appeared in New York to lobby in person on
the issue of slavery, when Congress eventually considered the first Militia
Act, the Quakers returned in full force to plead for an exemption from the
militia service.
333
James Jackson delivered a tirade about those who refuse
to fight, but “Elias Boudinot posed a concept of moral conscience it was
327
See id. at 257–60 (founding), 288–91 (presiding over).
328
See id. at 173.
329
See ALFRED HOYT BILL, THE HOUSE CALLED MORVEN. 37–51 (1954).
330
See BOYD, supra note 320, at 13–16.
331
See Gary Nash, A Moment in Nassau Hall, PRINCETON ALUMNI WEEKLY 3,
4–8 (Oct. 3, 2018). Anthony Benezet, John Pemberton, Warner Mifflin, and one or
two others were present. See id.
332
See id. at 7.
333
See BORDEWICH, supra note 9, at 291.
60
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 515
both rooted deep in Protestant tradition and looked forward to a modern
understanding of individual rights.”
334
Boudinot added that it was
pointless to try to force people to fight who were refusing to do so—
pacifists make terrible soldiers in battle, he explained.
335
There was also
the issue of national reputation: “We are said to be the people who
understand the civil rights of men . . . . Do not let us then, at the outset,
violate the great and important ones, the rights of conscience, enforcement
to that which their religious tenets teach them to abhor.”
336
An additional point for giving context to Boudinot’s Second
Amendment statements is that his view of the Constitution overall was not
what moderns would describe as strict constructionist or originalist. Early
in the first session of Congress, as they debated about presidential
appointment and removal powers for executive officials, Boudinot asked,
“Can the Constitution be executed if its principles are not modified by the
legislature?”
337
He believed the Constitution was continually evolving.
338
He believed Congress had the power to fill in the gaps left in the
Constitution via legislation, and that constitutional silence on a subject was
a license, not a limitation: “The Constitution itself called for the work
necessary to complete its design and function. Misunderstanding what the
constitution required, others foolishly sought to ‘narrow the operation of
the constitution,’ placing it in a straitjacket, ‘rendering it impossible to be
executed,’ complained Boudinot.”
339
Boudinot would probably have bristled at suggestions that the
Constitution was “sacred” or somehow divinely inspired. Like many
Federalists of his day, he thought no constitution was perfect, but must
have some inherent defects, the product of fallible humans; he cautioned
his colleagues to “be careful not to be misled by looking for perfections
when nothing higher than human prudence and foresight ought to be
expected.”
340
C. The Silence of James Madison (VA)
James Madison did not speak during the debates about the Second
Amendment, but he helped draft it and was at least partly responsible for
the inclusion of the “religiously scrupulous” clause. Madison’s personal
approach to the conscientious objector clause was complex. On the one
hand, during the subsequent debates about the first federal Militia Act,
334
Id.
335
See id.
336
Id.
337
GIENAPP, supra note 9, at 140.
338
See id.
339
GIENAPP, supra note 9, at 137.
340
Id. at 214.
61
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
516 MISSOURI LAW REVIEW [Vol. 88
Madison argued that those “religiously scrupulous of bearing arms”
should not have to serve in person, but he also agreed with those who
thought the Quakers should have to pay a fine in lieu of service, which he
must have known they would simply refuse to pay. In 1816, then-
President James Madison issued a blank presidential pardon form for
Quakers who refused militia service, and refused to pay the statutory fines,
in Maryland.
341
Even though the “religiously scrupulous” clause dropped from the
final Senate version of the Amendment, it is significant that the comments
of Representatives Benson, Scott, and Smith refer to the legislatures
creating a statutory protection for religious pacifists so that the clause in
the Second Amendment might be unnecessary—Benson and Scott were
confident that legislatures would do so, and Smith noted that some of the
state proposals for an amendment protecting the militia or right to bear
arms included the exemption with various wording. Arguably, this
presumption that the legislatures would recognize the same legal
protections means that the “religiously scrupulous” exemption was part of
the public meaning of the right as it was understood before the codification
of the specific text that became the Second Amendment.
V. REFLECTING ON THE DEBATES: WHAT CAN WE INFER?
The House debates about the Second Amendment focused mostly on
whether to include an exemption for conscientious objectors (especially
Quakers), and if so, how to phrase it. There were clearly differing views
about whether to grant such an exemption, and if so, whether it was more
appropriate to do this through the Constitution or through state legislative
enactments. The vote reveals that a majority of the House favored
exempting conscientious objectors one way or another, though it is less
clear what the split was on the question of forcing conscientious objectors
to pay something in lieu of service (a disagreement to which they returned
when debating the Militia Act).
Two outspoken anti-federalist members of the House, Gerry and
Burke, interrupted the discussion about conscientious objectors to propose
more sweeping language that would prohibit, or at least severely restrict,
the maintenance of a federal standing army. Both were disappointed by
the proposed Amendments overall, as they had wanted much larger
structural changes to the Constitution itself. Neither of their proposals
gained much traction and seemed like an attempt to replace the proposed
341
Gilder Lehrman Institute of American History, Conscientious Objectors:
Madison Pardons Quakers, 1816, available at https://www.gilderlehrman.org/history-
resources/spotlight-primary-source/conscientious-objectors-madison-pardons-
quakers-1816 [https://perma.cc/NY78-JHVH].
62
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 517
Amendment—about militias and the right to keep and bear arms—with a
major change to the Constitutional itself regarding the federal military.
The discussions in Congress about the Second Amendment occurred
at a time when Congress was dealing with closely related issues—the state
debts to their militia members for service in the War and whether the
federal government should assume such debts, the prospect of westward
expansion and frontier conflicts with indigenous tribes, fears by the
southern states that the federal government would abolish or restrict the
institution of slavery (and their threats/plans to secede in that case), and
the disputes over state boundaries that occasionally boiled over into armed
clashes. There was zero discussion of an individual right to own or carry
weapons for self-defense, but inferring a reason for this requires
speculation—silence could indicate they thought the point was so obvious
as to be trivially true, or it could mean that the idea never occurred to them.
Either view, however, is an argument from silence.
A. Protecting Individual Rights or Protecting the Militias?
In Heller, Justice Stevens’ dissent overall adopts the view that
Congress and the ratifiers thought the Second Amendment was about
protecting, implying that without the Amendment the federal government
might disband the state militias.
342
At the time, however, Congress was
focused on, and divided over, the assumption debate, which itself
demonstrated that many of the states could not afford to activate their
militias for any extended period, and it was not clear how the federal
government could afford to support the states in this. Both the militia
system and a potential federal standing army posed serious problems for
public finance. For fans of the militia system, it would have been more
rational to worry that the militias would die off on their own if they did
not receive ongoing federal subsidies, or at least recurring federal bailouts.
Bruen followed the Heller majority in treating the Second
Amendment as primarily protecting individual rights,
343
presumably
because Congress thought a constitutional amendment was necessary to
prevent the government from disarming the populace. The Heller majority
noted that several state constitutions at the time already protected a right
to bear arms, so there was no imminent risk of widespread disarmament
by those states; such a fear would have had to be directed at the federal
government.
344
The problem is that it would have been completely
infeasible for the tiny federal government of the time to conduct a door-
to-door confiscation of all arms throughout the sparsely-settled, vast
342
D.C. v. Heller, 554 U.S. 570, 637 (2008) (Stevens, J., dissenting).
343
New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2142
(2022).
344
Heller, 554 U.S. at 598.
63
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
518 MISSOURI LAW REVIEW [Vol. 88
frontiers of even the original thirteen states. Such a fear also seems
irrational from the standpoint of realpolitik: if state legislatures were
protecting the right to bear arms, it seems unlikely that the same state
would elect representatives to Congress who would support a ban on all
arms. Moreover, there were no historical examples of a state or colony
attempting to do this—isolated examples from brief periods of political
tumult in English history were already at least a hundred years in the past
at that point. A few isolated examples from the colonies at the outbreak
of open hostilities with Britain were merely wartime (or verge-of-war)
seizures of the enemy’s arms, not a policy of universal weapons
confiscation during peacetime. Universal weapons confiscation in
peacetime would have been an irrational fear, something no one among
the ratifiers would have experienced.
It seems plausible, based on the House debates, that there was no
shared understanding of what the Second Amendment meant or
represented—in other words, no true “public meaning.” Instead, it is
possible that different constituent groups in different regions of the
country understood it very differently, and that at least some in the
ratification era viewed the Second Amendment as being related to the
Quaker Factor. There was no agreement, even within a single state,
between federalists and anti-federalists about what the right to keep and
bear arms entailed.
345
As one historian put it, “Exploring the multiple
original meanings of the right to bear arms in Pennsylvania suggests that
there is good reason to believe that the federalists objected to the anti-
federalists’ understanding of the right to bear arms, particularly when it
came to armed rebellion.”
346
There were diverse views among the anti-
federalists themselves, sometimes even within the same state.
347
So, with
no clearly discernable public meaning, the task of courts post-Heller and
Bruen to dutifully apply the original public meaning of the Second
Amendment to modern day litigation is made extremely difficult, if not
outright impossible.
B. The Second Amendment and Assumptions About Public Versus
Private Ownership of Firearms
Despite the Framers’ overall obsession with private property rights,
militia records from the time indicate there was some confusion about
whether guns were truly private property in the usual sense, or were public
property, or some type of hybrid property (like private property held in
345
GIENAPP, supra note 9, at 410.
346
Id.
347
See id. at 405.
64
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 519
public trust).
348
As historian Robert Churchill concluded in his survey of
militia returns from the period, “It is time to ponder what these guns meant
to their owners and how that meaning changed overtime.”
349
Militia
returns from the period usually did not differentiate between guns owned
by militiamen and guns owned by states or local governments.
350
Officers complained during the war that men would report for duty
without bringing their guns from home—even many who in fact owned
guns—expecting to be issued new weapons from the military supply.
351
“More often than not, however, the men arrived at camp without arms.”
352
Military commanders’ indignation at men not bringing their own guns
suggests that the officers thought that they had no right to leave their guns
at home. There were also complaints that men would return home with an
army issued gun and never bring it back, and it is unclear if those men
thought they were appropriating property belonging to the military
(theft),
353
or that they already thought of all their guns at home as partly
belonging to the public and assumed they could store military issued rifles
at their homes indefinitely.
354
There were guns issued that were
specifically designated as public property.
355
It is not completely clear that
those who drafted, debated about, and voted for the Second Amendment
thought the guns were private property, as opposed to private property held
in trust for public use, or even public property of which the militia member
was a custodian. After 1775, George Washington began a policy of
keeping muskets that men brought with them even after the men returned
home.
356
“He ordered that no soldier upon the expiration of his term of
enlistment was to take with him any serviceable gun. If the musket was
his private property, it should be appraised, and he would be given full
value for it.”
357
As an enforcement measure Washington withheld the last
348
See Robert H. Churchill, Gun Ownership in Early America: A Survey of
Manuscript Militia Returns. 60 WILLIAM & MARY Q. 615, 642 (2003) (“When
Virginia and the other southern states stopped counting the private guns of their
militiaman, they undermined a public claim on the private arms of the individual
citizen the militiamen had contested for half a century.”).
349
Id.
350
See id. at 623.
351
See ERNA RISCH, SUPPLYING WASHINGTON’S ARMY 348–49 (1981).
352
Id.
353
George Washington, in order to reduce the number of army-issued guns his
soldiers would take home and attempt to keep, after 1776 had them stamped with an
insignia to mark them as public property, though apparently this did not solve the
problem. See E. WAYNE CARP, TO STARVE THE ARMY AT PLEASURE: CONTINENTAL
ARMY ADMINISTRATION AND AMERICAN POLITICAL CULTURE, 1775–1783 66–67
(1984).
354
See id.
355
See Churchill, supra note 348, at 624.
356
See RISCH, supra note 351, at 349.
357
Id.
65
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
520 MISSOURI LAW REVIEW [Vol. 88
two months pay from any soldier who returned home with a gun he had
brought with him from home when he first reported for duty.
358
Many
regimental troops ignored these rules and took their guns home with them
anyway.
359
Washington advised the Continental Congress in 1776 that
there were 2,000 men in his camp without muskets.
360
As late as the spring of 1780, Washington was still warning his officers
to give strict tension to prevent soldiers from carrying away their arms
when their times of service expired. He had used every means in his
power to prevent this practice, but he was persuaded they do it in a
variety of instances nevertheless.
361
An illustration of the disjunction between modern ideas of gun ownership
and the mindset in the Founding generation was the problem of gun
maintenance and care in Washington’s army. One contributing factor to
the chronic shortage of firearms for the army was the soldiers’ failure to
keep their weapons in good (operating) condition.
362
Washington
concluded that the men would not take care of their “own” guns they
brought from home (guns they were obligated to leave with the army when
they left), but they would take better care of guns issued to them by the
army after their enlistment; as a result, he tried to shift away from the
bring-your-own-gun-to-war policy to procuring or producing the army’s
own guns that could be issued to the men for safekeeping.
363
Quaker communities would have further complicated this situation
as there would be fewer guns available, not due to a legal prohibition on
guns, but merely due to low interest in the community in arming
themselves for self-defense. To the extent that the Second Amendment
was part of a program to ensure an ample supply of firearms for future
conflicts that might arise, the Quakers created a gun gap.
364
Compared to
358
See id.
359
See id.
360
See id. at 350.
361
Id. at 356.
362
See id. at 351–52.
363
See id. at 352. The question of how the colonists before the war viewed
private property rights in guns, versus some kind of public trust idea, deserves more
attention and development from historical researchers.
364
“In 1755, North Carolina began to have armed conflicts with Indian tribes
there, and the governing Council of the colony ordered that all those eligible for the
militia were to furnish their weapons. Then the Council made the interesting
suggestion that the Quakers should produce instead the tools of the pioneer settler –
axe, spade, and hoe.” MARGARET HIRST, QUAKERS IN PEACE AND WAR 352 (1923).
This request by the Council seems to acknowledge that the Quakers did not own guns,
and no one expected them to fight with farm tools – they were hoping the Quakers
would turn these over for the militia to use as equipment. The Quakers refused even
66
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 521
other states, Pennsylvania had significantly lower rates of gun ownership,
according to probate records.
365
“Arms were less prevalent in
Pennsylvania than in the other states. . . .”
366
The dearth of firearms
became an acute problem on the frontier during the French & Indian
War.
367
During that conflict, Benjamin Franklin had to obtain guns from
neighboring states to help ameliorate the shortage.
368
The situation did not
change much even in the years leading up to the War of Independence,
despite the Pennsylvania legislature gradually approving the creation of a
state militia starting after 1756. When Pennsylvania recruits turned out in
1776, a disproportionate number were unarmed. Even after Independence,
the pattern continued—more than one-fourth of the men in the 1806 militia
census would have lacked a firearm, based on the same census count of
available muskets and rifles.
369
Even though guns were legal in
Pennsylvania, and the Quakers were out of government at that point, they
either exerted enough social and cultural influence to suppress gun
ownership overall or comprised enough of the population to create a local
market failure for distribution or retail sales of firearms. As Thomas
Verenna explains:
What does all this mean? The myth that guns were everywhere, and
that everyone (or even every household) in Pennsylvania had a gun,
has to be put to rest. While such a claim is probably true in certain
parts of the country during the Revolutionary War, Pennsylvania holds
a unique place in the history of gun culture. It remained a center of
conflict for over two decades, and produced large numbers of troops—
both Continental and militia—in support of the War for Independence.
But proper acquisition, maintenance, and training with firearms just
did not catch on. Some claim that the state did not acquire firearms
because of the Quaker government, but there were no laws on the
books restricting the purchase of guns. And while the Quaker
government might not have acquired many firearms for public stores
initially, their attitudes changed during the French and Indian War.
to do this and continued to petition to be excused from all participation whatsoever in
the violence. See id.
365
See James Lindgren & Justin L. Heather, Counting Guns in Early America,
43 WILLIAM & MARY L REV. 1777, 1803–05 (2002).
366
Nathan R. Kozuskanich, Rethinking Originalism: Bearing Arms and Armed
Resistance in Pennsylvania, 56 AM. J. LEGAL HIST. 398, 400 (2016).
367
See Thomas Verenna, A Want of Arms in Pennsylvania, J. AM. REVOLUTION
(Apr. 24, 2014) available at https://allthingsliberty.com/2014/04/a-want-of-arms-in-
pennsylvania/ [https://perma.cc/9W6B-UZXK] (quoting numerous contemporary
sources regarding the dearth of firearms in Pennsylvania, both before and after
Independence).
368
See id.
369
See id. (citing William G. Merkel, Mandatory Gun Ownership, the Militia
Census of 1806, and Background Assumptions Concerning the Early American Right
to Arms: A Cautious Response to Robert Churchill, 25 L. & HIST. REV. 160 (2007)).
67
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
522 MISSOURI LAW REVIEW [Vol. 88
Nonetheless, their lack of initiative to purchase firearms did not, in any
way, infringe upon citizens acquiring them personally. And plenty of
gunsmiths and one powder mill existed in Pennsylvania—on the
frontier and in towns—so that if one wanted a firearm they could
acquire them. Yet for reasons unknown, I cannot say why,
Pennsylvanians just did not seem all that interested in acquiring
firearms.
370
Remember that during the House debates about the Second Amendment,
Thomas Scott (representing the non-Quaker frontier area of southwest
Pennsylvania) had referred specifically to the right to “keep arms,” without
mentioning a right to “bear” arms. It seems plausible that the choice of
the verb “keep” in the Amendment, rather than the more common “own,”
was intentional. Arms were “kept” by citizens, but they were kept for the
community, even if the keeper had the right to use a weapon in the
meantime for hunting or self-defense. “Ownership” of arms was subject
to impressment or requisition by the government at any time and did not
have the same legal status as other private property rights.
The Second Amendment had implications for public finance.
Arming the federal military—or even state militias—was expensive, and
from a financial standpoint, the Second Amendment was a way for the
federal government to externalize most of the costs onto the states and then
push those costs onto private citizens. The better armed and organized the
militias were, the less Congress would have to spend when it needed to
raise and equip an army. During the war, the Continental Army had faced
a desperate shortage of guns, gunpowder, and ammunition.
371
The Second
Amendment provided a foundation for the first federal Militia Act, which
required men to acquire their own firearms, even in peacetime. Some of
the states were still swimming in their own unpaid war debts to their
militiamen; if the Second Amendment encouraged the citizenry to arm
themselves, the states would have to spend less on an armory or
stockpiling an arsenal for its militia.
The dependence militias had on the supply of privately held firearms,
rather than relying exclusively on state-owned armories, highlights a
complicated free-rider problem with regard to the economics of the gun
supply. Guns were expensive, apparently too expensive a commodity to
buy and keep stockpiled and idle in a state armory waiting for the next
armed conflict to erupt. At the same time, the value of guns as a public
good, from the standpoint of the militia, probably far outweighed any
370
Verenna, supra note 367.
371
See E. WAYNE CARP, TO STARVE THE ARMY AT PLEASURE: CONTINENTAL
ARMY ADMINISTRATION AND AMERICAN POLITICAL CULTURE, 1775–1783 66–67
(1984); RISCH, supra note 351, at 348–49.
68
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 523
private value or utility they had for individual citizens. Indeed, protecting
the existence of state militias without prohibiting a federal standing army
would inevitably, and foreseeably, lead to freeloading by cash-strapped
state. States could simply slash their state militia budgets and rely on
protection from the federal government. A fear that the federal
government would try to disband state militias was less rational than a fear
that a state would decide to forego having its own militia, or at least
significantly defund its own militia, pushing the costs of state security onto
the federal government (and, indirectly, onto other states). In the colonial
era, there were occasions when colonies had to supply funds or militia
support for British military actions, and the colonies that contributed (like
Massachusetts and New York) protested over Pennsylvania’s non-
participation. There was a financial incentive for states to defund their
militias that could create an opening for the most well-organized and
active political lobby of the era—the Quakers—to push for a state to
curtail its militia activities. A similar but smaller risk applied on the
federal side. Given that the affirmation clauses indicate the Framers
contemplated Quakers holding federal office in any of the three branches,
they would have contemplated that Quaker officeholders would disfavor
both military spending and military actions.
The question of whether private property rights in guns were identical
to or different from other chattel property rights merits more research; the
main point here is that the economics of firearms at the time would have
provided an opening for a pacifist political faction to orchestrate the
defunding of their state militia, justified to the voting public as a matter of
simple fiscal responsibility, especially if they could fall back on the federal
government. This, in turn, brings us back to the Second Amendment and
what it was designed to prevent. There was a genuine risk in the Founding
Era that the combination of a pacifist political bloc with the free-rider
problem of state military defense would create a perverse incentive for a
state to defund its militia and force the federal government to bear the
burden instead, even if the benefit went disproportionately to one
imperiled state that had defunded its militia. I contend that this was a much
more realistic fear for the Founders than the federal government banning
guns or going door to door to confiscate firearms and disarm the populace.
The forced disarmament scenario, however, underlies the individual right
theory. Why did the Founding generation think the Second Amendment
was necessary? What was the bad outcome it was supposed to prevent?
The individual rights advocates would say its purpose was to prevent
disarming the citizenry, but I think it is more likely that the Founders were
concerned some states would neglect, defund, or abandon their own
militias, and that Quakers were the ones most likely to attempt this. The
result would have been more of the burden shifting to the federal
government. In other words, rather than worrying that an overbearing
federal government would mandate the dissolution of the state militias to
69
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
524 MISSOURI LAW REVIEW [Vol. 88
institute a tyrannical national system, the more pressing concerns of the
time should have made them concerned about the anti-militia movement
being a bottom-up phenomenon. In addition, there was probably some
concern, though it was less likely, that Quakers or some similar pacifist
group could gain control of a chamber of Congress or the Presidency and
derail the national security and foreign policy agenda of the majority.
C. The Colony With No Militia
Quakers had controlled the Pennsylvania government for most of its
history—and at times had exerted significant influence in the colonial
governments of New Jersey, North Carolina, and Rhode Island. Their
strict anti-military policy was the central issue that brought about the end
of their control in Pennsylvania, “as a growing Associator movement
latched on to the unseat the Quakers and establish a new government.”
372
From the standpoint of the radicals that seized control of Pennsylvania in
1776, the Quakers had for decades thwarted their efforts to organize or
arm themselves for self-defense against threats on the frontier (mostly
Native Americans, but also occasionally against the French). “Indeed, by
1776, bearing arms was the paramount obligation in the new state and
became a defining attribute of male citizenship for Pennsylvanians.”
373
The Pennsylvania frontiers were mostly non-Quakers, however, and
the right to bear arms meant more than being permitted to own firearms—
they expected to be provided with weapons by the state, either in-kind or
via some system of reimbursements or vouchers. This was true as early as
the 1750s:
For example, a 1755 petition from Bucks County asked the assembly
for ‘a Supply of Arms and Ammunition, and that some Method may
be fallen upon to enable the Inhabitants to distinguish our friendly
Indians from others.’ When Robert Hunter Morris replaced James
Hamilton as governor in October 1755, he struggled with the assembly
to supply people in the West with the arms they desired.
374
Frontier leaders in Pennsylvania complained “that three-quarters of them
had no guns or ammunition and lacked any cohesive military leadership.
375
The “right to bear arms” certainly included self-defense—mostly against
Native American raids—but it also meant a “well-regulated militia,” and
that meant an adequately supplied militia.
376
Similarly, “Petitioners from
372
See Kozuskanich, Pennsylvania, the Militia, and the Second Amendment,
supra note 58, at 132.
373
Id. at 133.
374
Id. at 127.
375
Id at 127–28.
376
See id.
70
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 525
Lancaster complained that while they were ‘being invaded by a cruel and
formidable Enemy,’ the people were ‘neither provided with Arms or
Ammunition, nor under any Kind of Discipline.’”
377
One particularly illuminating anecdote about the attitudes toward
guns, militia service, and self-defense is in a 1776 letter from William
Irvine to John Hancock, in which Irvine wrote that men were upset with
being charged for their militia-issued muskets: “They complain farther . . .
that they will in all probability not only be naked at the end of the year
but in debt too—[and] that as soon as the War is at an end the Arms will
be useless to them.”
378
This letter reveals or confirms several important points. First, many
non-pacifist men on the frontier, who were willing to serve in the militia,
did not own firearms themselves, but needed guns provided by the militia
commanders. Second, muskets were unaffordable to many rustic settlers,
a point that is relevant to modern Second Amendment questions related to
gun taxes, defining the parameters of “common use” weapons, and so
forth. Third—and most striking—is that the men were not delighted that
they finally owned a weapon that they could keep and bear for personal
self-defense after the War ended. Instead, they thought the muskets were
“useless” except for warfare.
The Quaker ethos of anti-militarism seems to be the only explanation
for the perennially low gun ownership rates even among non-Quaker
communities on the Pennsylvania frontier. Not funding a militia affected
the prevailing social norms of gun ownership; guns were not banned, but
they were also not popular.
From the perspective of the members of Congress,
379
Quakers could
undermine plans for westward expansion and the addition of new states,
because they could prevent the state militias from conquering Native
Americans. Compounding this concern was the fact that Quakers were
well-represented in the westward migrations that were already happening,
with settlers moving into Kentucky, Ohio, Indiana, and other western
territories; many came from southern states where slavery was more
prevalent and the state authorities more hostile to abolitionists.
380
377
Id at 129.
378
Id. at 136 (emphasis added).
379
Thomas Scott, the non-Quaker Federalist Congressman from western
Pennsylvania, expressed to his colleagues in Congress that he expected “millions” of
people to move westward in the coming years, and said Congress would have to
choose between a well-regulated militia and settlement by “unprincipled banditti.”
BORDEWICH, supra note 9, at 92.
380
See, e.g., ROGERS, supra note 75, at 373 (describing the exodus of Quakers
from post-war South Carolina to the Northwest Territory. “Also among those leaving
were Quakers, who disapproved of slavery. Between 1805 and 1819, twelve hundred
Quakers left for the Northwest.”). Id.
71
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
526 MISSOURI LAW REVIEW [Vol. 88
An alternative explanation of the Second Amendment’s purpose is
that it was supposed to prevent what happened in Pennsylvania—an
official state policy of anti-militarism—from happening again, there or
anywhere else. As John Adams wrote in 1813, “I have witnessed a Quaker
Despotism in Pennsylvania. The Sovereignty was in the Quakers. The
Revolution destroyed it.”
381
In the Founding era, the Quakers were unique
in their organized and relentless political lobbying over issues that were
religiously adjacent, like abolition and pacifism, but not directly related to
the spread of their faith. Even though the Quakers had removed
themselves from holding public office after 1776, the Framers clearly
anticipated Quakers holding federal offices at some point, as indicated by
the inclusion of “oath or affirmation” in various places in the Constitution.
The House members from southern states clearly feared that the Quakers
had enough clout or influence to push their agenda on the slavery issue,
and the concentration of Quakers in Philadelphia was a reason some feared
having the nation’s capital there.
Historian Nathan Kozuskanich places the end of Quaker rule in 1776,
when the original Penn charter was abandoned and a new state constitution
was adopted, and a fiercely anti-Quaker legislature took control.
Kozuskanich explains:
One of the important social realities Pennsylvanians faced was the
problem posed by Indians along the frontier. While Pennsylvania was
hardly unique in this problem, it was peculiar in having a pacifist
Quaker government in power. The Pennsylvania constitution emerged
out of a struggle between two opposing visions of civil society—a
martial back county vision that prized equal representation in the
Assembly, trial by jury, and participation in the common defense, and
a Quaker vision defined by liberty of conscience, pacifism, and
negotiation.
382
At the time the Second Amendment was debated and ratified, it was
conceivable that the Quakers could exert enough influence in one or more
states to defund its militia (especially given that there were other financial
incentives for states to do so), and it would have been rational to fear that
one of the new states that would form in the western territories would come
under the sway of anti-militarism. A constitutional provision may have
seemed necessary to preempt a pacifist political movement from gaining
traction, and it is unsurprising that this would come packaged with a
concession to the pacifists that they could have personal exemptions. The
inclusion of the “religiously scrupulous” clause in the original Second
Amendment could have been to complement the preceding clauses in the
381
MEKEEL, supra note 19, at 386.
382
KOZUSKANICH, For the Security and Protection of the Community, supra note
55, at 6.
72
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 527
Amendment, which provided the flip side of that exemption—that no state,
nor the federal government, could adopt an official policy of anti-
militarism. Rather than protecting the states from interference by the
federal government on the militia question, the Second Amendment, under
this theory, protected the majority of the citizenry from those receiving the
exemption forcing their pacifism on everyone else.
Even in areas where Quakers did not control the government, they
could exert social influence. Consider the example of the Quaker
gunsmith in North Carolina named Matthew Osbourne, who repurchased
his guns from all his customers at the outbreak of war in order to prevent
them from being used in the fighting:
The most striking example of Quaker resistance to the demands of the
state government occurred near the Piedmont monthly meeting of
Centre. Soon after learning that the fighting had begun, Matthew
Osborne, an expert gunsmith, directly disobeyed the government’s
demand for supplies. Osborne had made many hunting rifles for his
neighbors in the surrounding countryside and was asked to produce
guns for the Continental Army. He not only refused to do so, but went
around to his neighbors and bought back the guns previously sold
them. These were taken back to his shop where the barrels were heated
and bent back to make them useless. In this way, Osborne could make
sure that no rifle he had made would ever be used in taking human life.
Thus, in his small way he prevented his shop from becoming a
munitions plant for the “powers of darkness.”
383
The point of recounting this story is that it was reasonable for the Framers
to expect the Quakers would not only refuse to participate in the military,
and that they would not only be without guns that others could take in use,
but they might actively destroy firearms that came into their possession,
thereby depriving the public of their use. Even though the stories are
merely anecdotal, incidents like these are part of the history of the Second
Amendment and inform the text-and-history approach that Bruen adopted.
Bruen mandates that courts apply public meaning originalism when
analyzing Second Amendment challenges to gun safety statutes or
383
Steven Jay White, North Carolina Quakers in the Era of the American
Revolution, 71–72 (1981) (Master’s Thesis, University of Tennessee), available at
https://trace.tennessee.edu/utk_gradthes/1227 [https://perma.cc/R56E-LQNA]. An
alternate version of this story is in circulation that involves a different method of
destruction: “According to local legend, Osborne made a number of long rifles for his
Quaker neighbors. When he learned some of those rifles had been used at the Battle
of Guilford Courthouse, he repurchased the rifles and broke them against a tree.” C.
Michael Briggs, The Longrifle Makers if Guilford County, 103 AM. SOC. ARMS
COLLECTORS BULLETIN 33–39 (2011), available at https://americansocietyofarms
collectors.org/wp-content/uploads/2019/06/2011-B103-The-Longrifle-Makers-of-
Guilford-County.pdf [https://perma.cc/4M3S-CLMG].
73
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
528 MISSOURI LAW REVIEW [Vol. 88
regulations, which includes looking at historical sources to determine the
meanings of the right to keep and bear arms in the Founding era. Such an
inquiry is incomplete, however, if it attempts to ascertain the scope of the
right to bear arms in isolation from other related issues that public leaders
in the Founding era closely associated with that right. Freedom to own
firearms was not merely an abstract idea or philosophical ideal, but a
feature of life in the young Republic that existed within the context of
economics, market prices, taxes, government, slave patrols, Native
American raids, and expectations of future large-scale armed conflicts. If
we try to conceptualize a Founding-era right to bear arms without seeing
it in its larger social context, we are likely to arrive at incorrect conclusions
or misinterpret the history in light of our modern context and modern
assumptions.
VI. CONCLUSION
The House debates about the Second Amendment are an important
piece of the Amendment’s history. This Article has attempted to provide,
for the first time, a step-by-step survey of the debates, situating each
comment in the original Second Amendment debates within the context of
the overlapping issues of the day, such as funding for those bearing arms
and the public debts that would result, the implications of arms-bearing for
westward expansion and internal state security, and the complicated
political situation with the groups like the Quakers, who opposed militias
and bearing arms as a matter of conscience. Although the First Congress
ultimately sent a version of the Second Amendment for ratification that
omitted the exceptions for the religiously scrupulous, the debates provide
strong historical clarification of the perceived need for militias. The
debates also reveal the significance, for those in Congress, of the existence
of groups that refused to participate in militias, the expediency of
reassuring those groups that they would not be subject to conscription, and
the problems of funding the militias and sourcing firearms.
This Article has also set forth a possible alternative explanation of
the Second Amendment’s purpose: to preempt any state or the federal
government from adopting a policy of pacifist anti-militarism, whether
through direct governance by officials who might be religious pacifists or
through lobbying and social influence of Quakers and similar religious
groups. In the original version of the Second Amendment, this preemptive
move came with the proviso that the pacifists themselves would receive
legal protection for following their conscientious scruples. A forthcoming
companion article to this one will explore more deeply the complex
problems the Quakers posed and how these related to the right to keep and
bear arms, with more focus on the Pennsylvania backstory to the Second
Amendment rather than the House debates, which were the primary focus
of this Article. The public finance issues related to the Second
74
Missouri Law Review, Vol. 88, Iss. 2 [2023], Art. 9
https://scholarship.law.missouri.edu/mlr/vol88/iss2/9
2023] CONGRESSIONAL DEBATES ABOUT SECOND AMENDMENT 529
Amendment, including the legal status of guns as private property versus
property held in trust for public purposes, were touched upon in this
Article, but deserve more investigation by academic researchers.
Of course, the current Supreme Court insists that the core principle
of the Second Amendment is the right of law-abiding citizens to arm
themselves for self-defense; in the short term, the Court is not looking for
alternate explanations of the Second Amendment. Even so, this Article
has shown that considering the right to bear arms in isolation from other
related issues is problematic if we are to be faithful to the original public
meaning of the Amendment and its text. The original debates in Congress
about the Second Amendment reveal that it overlapped with several other
thorny policy issues, just as Second Amendment issues today overlap with
complex questions of federalism versus local governance, tort liability for
manufacturers, licensing and permitting regimes, taxation, policing, the
carceral state, and even public schooling. The First Congress wanted to
provide special solicitude for the rights of those not bearing arms due to
their convictions. Even those in Congress who did not want to include the
conscientious objector clause in the Constitution itself mostly wanted state
legislatures to provide such protection instead. They did not treat an
individual’s right to keep and bear arms in isolation—whatever that right
may have entailed—but considered it alongside the need to provide legal
protection for the unarmed as well. This is a lesson that courts should
apply today.
75
Stevenson: Revisiting the Original Congressional Debates About the Second Am
Published by University of Missouri School of Law Scholarship Repository, 2023
