Monday, May 11, 2020
The First Congress passed the U.S. Bill of Rights amendments on to the states for ratification in 1789 because a number of state ratifying conventions desired private rights protecting restrictions on the new Federal Government. By identifying who wrote the very first Second Amendment predecessor (one combining both right to arms and well regulated militia clauses), and who improved that language later in Congress, many facts illustrating the development and intent of this most disputed constitutional provision become clear.
Three native sons of Virginia were the men most responsible for developing and/or promoting not only the Second Amendment's language, but also the other provisions of the U.S. Bill of Rights - George Mason, Patrick Henry, and James Madison. The younger of these, Madison, was most prominently involved in passage of the Bill of Rights amendments by the First Congress. All three men were delegates the previous year to the 1788 Virginia State Ratifying Convention, which produced the model for the U.S. Bill of Rights. All three were also appointed as Virginia delegates to the Philadelphia Federal Convention of 1787 that produced the proposed U.S. Constitution, but Henry never attended. In addition, these three men were members of Virginia's Revolutionary Era Convention and on the committee which produced and adopted America's first state declaration of rights and form of government over a decade earlier, prior to the Declaration of Independence. And almost two years prior to that, George Mason and Patrick Henry were intimately involved in activities relating to private arms and defense well prior to any hostilities of the American Revolution. They later protected these activities against violation by the government in Virginia's 1776 Declaration of Rights Article 13, the first of many American Mason Triads. Its leading well regulated militia declaration was the earliest such bill of rights related usage linking an armed civil population to ultimate control over government raised armed force.
James Madison's contribution was presenting the House of Representatives an improved version of Virginia's model for the U.S. Bill of Rights and pushing for its adoption. His specific original contribution was addition of restrictive language to all rights protections, including 'infringe' based restrictions on First and Second Amendment protected rights. Madison also grouped private rights protections together including both Second Amendment clauses. However, he was not the originating author of Virginia's Bill of Rights model and its Second Amendment predecessor.
The original author of The Second Amendment's two-clause version, as well as the other Bill of Rights protections, was George Mason, Antifederalist chairman of an amendments committee in Virginia's ratifying convention. Mason was assisted in convention by Patrick Henry, whose renowned rhetorical skills helped convince the assembled delegates that a U.S. Bill of Rights based directly upon Virginia's 1776 State Declaration of Rights was essential. Mason's model Bill of Rights, with its novel two-clause Second Amendment predecessor greatly influenced all following state ratifying conventions.
New York's ratifying convention altered Mason's Second Amendment predecessor a month later to make it more clear in the New York Ratification Declaration of Rights, and the following month the North Carolina Convention adopted Virginia's language verbatim along with all of Virginia's other proposals and refused to ratify until a Bill of Rights was added to the Constitution. It was these last three state ratifying conventions of 1788 that Congress understood as desiring the Virginia model Bill of Rights amendments and its Second Amendment predecessor.
A year prior to these ratifying conventions, Mason and Madison had been very active members of the Philadelphia Federal Convention. Virginia's delegates offered the assembled state delegations the 1787 Virginia Plan for their consideration, and the U.S. Constitution resulted from pursuance of that Plan. A major Ratification Era controversy over the need for a Federal Bill of Rights erupted near the end of the Convention. Mason pointed out that a Bill of Rights was desirable and could be drawn up in "a few hours" by relying on the state declarations of rights. Yet the Convention delegations, in a rush to leave town, unanimously voted down a committee to draw up a Bill of Rights as part of the Constitution. At this time, Madison considered Mason's concern for a Bill of Rights as a relatively unimportant little circumstance, but Americans ultimately agreed with Mason.
George Mason refused to sign the proposed Constitution and left the Federal Convention extremely upset. Before leaving Philadelphia, Mason discussed the need for a Federal Bill of Rights with all three men who later became Antifederalist leaders of the Pennsylvania Ratifying Convention Minority - John Smilie, Robert Whitehill, and William Findlay. As a result, the three Pennsylvanians did in in their own ratifying convention exactly what Mason did later in Virginia's - prepared and proposed a bill of rights based on their own state declaration of rights, but it was defeated on a procedural vote. Undoubtedly, the reason Mason used both a Pennsylvania style right to arms clause and his own well regulated militia language as the original Second Amendment predecessor was his contact with the Pennsylvania Bill of Rights supporting leaders. Mason continued on after leaving Philadelphia engaged in a one man information campaign for a Federal Bill of Rights and against ratification of the proposed U.S. Constitution as written.
George Mason was also the primary author of the Virginia Declaration of Rights and Form of Government in June of 1776, early in the American Revolution. This was eleven years prior to his writing the Virginia model for a Federal Bill of Rights. But Mason was not alone in this early Revolutionary Era constitutional endeavor. Both Patrick Henry and James Madison were also members of the 1776 Virginia Convention that formed America's first state constitution, and both were on the committee with Mason that developed and approved the language. Mason's original well regulated militia clause from Virginia's 1776 Declaration of Rights was copied verbatim by Mason into Virginia's 1788 model for the U.S. Bill of Rights, and its full Mason Triad context was included.
Other states followed Virginia's 1776 lead on their Revolutionary Era declarations of rights. All seven subsequent states to adopt early American declarations of rights relied upon Mason's Virginia original version as a guide. This was especially apparent in their Second Amendment related Mason Triads, which protected an armed civil population, noted danger to liberty from a standing army, and declared government raised force subordinate to the civil power.
The older two Virginians, George Mason and Patrick Henry, were also both directly involved in defensive activities of the early Revolutionary Era clearly related to the Second Amendment and its predecessor Virginia Declaration of Rights Article 13 Mason Triad protection. Almost two years before its adoption in June,1776, both men met with George Washington and other Virginia patriots at Mount Vernon in August of 1774 to discuss claims of unlimited authority by government officials and the threat of military force to compel compliance. This was well over a half year before any hostilities began. The result of that meeting was formation of all-voluntary armed defensive associations in each of the delegates' home counties. Mason helped form and lead the Fairfax Independent Company, and Henry organized and led the Hanover Volunteers. By early 1775, still before hostilities, Mason started referring to his county's voluntary defensive association as a well regulated militia. According to George Washington, many counties in Virginia had such voluntary independent companies of militia by that time.
Voluntary defensive associations were only possible because Americans, largely farmers and frontiersmen, possessed their own arms and ammunition, knew how to use them, and could join together in mutual defense, just as they were capable of individual self defense. Americans individually decided they needed to protect themselves, their rights, their communities and their existing form of government against government officials who claimed unlimited authority, violated their rights, and destroyed their established civil government utilizing armed force.
There are extensive details regarding each of the above periods of time and the commentary of Mason, Henry, Madison, and many others relating to their activities and Second Amendment developmental history. As can be seen in the above narrative, the U.S. Constitution, and even more so the U.S. Bill of Rights, are Virginia inspired documents. George Mason was THE giant of American Constitutionalism, James Madison was also such a giant, and Patrick Henry rhetorically backed up their endeavors with clear and convincing reasoning. The Second Amendment most clearly has deep, deep Virginia roots.