AMERICAN INDIANS & THE 2ND AMENDMENT

© 1999, 2011, 2021 Native American Composition & Performance, Limited

By Jamie K. Oxendine, Lumbee/Creek

Native American Speaker

Director,Black Swamp InterTribal Foundation

PRELUDE AND DISCLAIMER

This is an information only paper of historical research on the creation of the 2^nd Amendment and its relation to Native America. It is not a work of argument or discussion on or about the 2^nd Amendment or any issues since the writing of the amendment.  The Author is in no way taking any sides on any rhetoric.  Please be aware that this is for knowledge on the hows and whys the 2^nd Amendment was created with regards to or more specific disregards to the Native American People.

As for any arguments on the 2^nd Amendment, that is another subject entirely to be discussed elsewhere.

Thank You

– Jamie K. Oxendine

AMENDMENT II

The 2^nd Amendment reads as follows with punctuation:

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

This one somewhat simple concept has been argued about since it was first proposed by James Madison in 1789.  Everything from the reason why it was written to the placement of punctuation and wording (especially the placement and use of the word of) has created heated arguments, debates, law sues, fights and more for what appears to be forever.  The amendment passed by Congress has different punctuation than the amendment passed and ratified by the individual states.  In fact what eventually became the 2^nd Amendment was argued, debated and changed in the House, the Senate and the States multiple times from June 1789 until 1791 when it finally became law.

From the moment it was proposed the Native American Culture was an integral part of the early arguments and debates on this 2^nd Amendment.  Most of America and the world have no idea that America’s Constitutional right to keep and bear arms was in part to protect one from Native Americans and even give one the right to kill Native Americans.

BACKGROUND

When the U.S. Constitution was ratified, a number of important statesmen led by Thomas Jefferson, James Madison, George Mason and others, felt that citizens’ rights should be protected more specifically than what was done in other countries.  The overall abuse of European government’s total ignorance of individual rights had been one of the main causes of the Americans revolting from the British Empire.  That work became the first 10 Amendments of the U.S. Constitution known as the Bill of Rights and were passed in 1791 (The Constitution was written in 1787).  They are still the basic fundamental source of such important individual freedoms such as speech, press, religion and more.

The U.S. Constitution was a very complex and profound document for its time.  What most Americans take for granted now was very new and quite radical of any state of government in the late 18^th Century.

The new document had to be ratified by the conventions of nine states (Article VII Ratification).  It was approved by 12 states in convention by unanimous consent of the states present on September 17, 1787 (Rhode Island was not present).  Then outside of convention each state had to individually accept and ratify the constitution.  The first of the 13 states to do this was Delaware on December 7, 1787.  The Constitution was declared ratified June 21, 1788, when nine of the states had ratified it individually.  The last of the 13 states to ratify was Rhode Island on May 29, 1790.  As one can see it took the 13 states just over 2 ½ years to finally individually accept the new U.S. Constitution.  Why so long?    

In 1787 the newly written and proposed U.S. Constitution was a very unusual document.  It was the first written national constitution since ancient times. It was also the first to set up what became known as the “federal system” of sovereign power coming from the people.  This power of the people was established by two factions: the federal government and the individual government of the states.

This type of government was very different from anything seen in Europe, Asia and many other countries across the world.  It was not however new or different to the Nations of Native America. In fact it is well known and documented that many of our “Founding Fathers” admired and copied ideas and concepts of the governments of the Native American Nations of the New World (specifically those of the Eastern Woodlands).  The Native American governments were truly for and by the people.

The new government was a very different system over the one under which the nation had been governed since the end of the American Revolution in 1781 and the passage of the Treaty of Paris in 1783.  The old government under the Articles of Confederation had put nearly all of the power in the hands of the states and gave very little power to the central government.  Under the Articles of Confederation the states could cooperate with the central government or totally ignore it if they so choose and many states did just that.

The brand new Constitution was quite extreme and created many arguments, debates and downright fights between congressmen, senators and of course states.  Obviously there was considerable opposition to the new form of government under this Constitution and the issues of the individual states rights vs. that of the federal government, but eventually the strongest supporters of the new system won out.  This was the Federalist Party and finally by 1790 all 13 states had ratified the Constitution.  With that hurdle however came another problem of passing a Bill of Rights.

The Bill of Rights as mentioned before came about because the loss of personal and civil rights and liberties had been the original reason for rebellion against the British Empire.  Specific guarantees of these rights were given by a group of statesmen led by Jefferson, Madison, Mason and others who felt that these rights were sufficiently important to be stated separately and they became the first 10 amendments of the Constitution.  One such right was the 2^nd Amendment to “bear arms” for the following reasons as set forth in 1791:

1. Protection from the “Blood Thirsty Heathen Red Savages”

2. Protection from another country or government including Native American Nations

3. Protection from Wild Animals, including Native Americans

4. Hunting to put meat on the Table

REASONS SET FORTH

1.  Protection from the “Blood Thirsty Heathen Red Savages”

The Northwest Ordinance of 1787 set a pattern for settlement and statehood for territories in the West.  The West at this time was the Great Lakes as well as the rich Ohio and Mississippi River Valleys. This was passed even though the Proclamation of 1763 and Treaties with many Native American Nations prohibited settlement west of the Appalachian Mountains.  That proclamation was under the British Crown though and since the United Sates just won a war with said Crown, they felt no need to honor any treaties between the British Crown and any Native American Nations.  The fact that America was a new Nation and claimed territories west of the Appalachians said to all “We own all and we shall take it.”

With this concept of “take and take” American settlers poured across the Appalachian Mountains and onto Native American Nations territory as well as territory claimed under British rule, French rule and even Spanish rule.  This created many issues with Great Britain, France and Spain. It also created a massive amount of problems with the Native American Nations.  Not to mention the fact that there was already high tension with Native American Nations in what was the borders of the United States.

Americans felt that they could not trust the Native Americans.  This was for many reasons including the support of many Native American Nations as Allies to Great Britain during the Revolution.  The fact that the Native Peoples had been split by Europeans since before the French & Indian War and that many Native American Nations helped the American Colonists in the French & Indian War and the American Revolution was completely and utterly forgotten.  Now the great United States saw the Native American Nations as nothing more than a hindrance and a nuisance.  America also feared the Native Americans.  The Native Peoples of this land were often referred to as “Blood Thirsty Savages, Heathen Red Savages, Merciless Savages and Barbarians” as well as other derogatory terms by just about everyone from the average farmer to the well-off merchant and the “Founding Fathers.”

In fact the most illustrious and sacred document of freedom and liberty the Declaration of Independence refers to Native Americans as “…the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes and conditions” Article XXVII.

Colonial Law from as early as the late 17^th Century gave permission to “. . .kill savage Indians on sight and at will.” Sadly, the United States did not argue this part of Colonial Rule and added this law to fit their own needs.  Each state was allowed to pass laws allowing the legalized murder of Native Americans.  Although some say that the famous phrase “The only good Indian is a dead Indian” is attributed to General Sheridan of Civil War fame, its original creation goes back to American Colonial times.  What is truly amazing is that such laws to kill Native Americans continued to be made and passed by new territories and new states well into the 19^th Century.  It is also very sad that some of these state laws have just recently been amended in the late 20^th Century and some have yet to be amended at all.

2.  Protection From Another Country or Government including Native American Nations

Seeing how new the U.S. was, it needed protection from a possible invasion from another country, government, Native American Nation or colonists still loyal to England.  This was especially true since America had just fought a long and very hard War of Independence with the British Empire and its Native American Allies.  Contrary to popular belief, The American Revolution was not just a war between Great Britain and its American Colonies.  It was really a world war with participation and interests from European Countries and of course many Native American Nations.  After the Revolutionary War, America was quite venerable and economically weak as war is very expensive.  America was also very venerable patriotically due the fact that an amazing 25% of colonists remained loyal to the British Crown during and after the Revolution.  The fear of a Loyalist uprising getting support from either a European power or Native American power was a grave fear to America. 

Although America had created a fighting Army, Navy, and Marines during the war, its forces after the war were a very different story as now there was no major standing Army, Navy or Marines.  For a side note: The Coast Guard was technically created via the Revenue-Marine on August 4, 1790. 

Many of the armed forces in the war were composed of everyday civilians…and do not forget that American Forces also relied on Native American Allies. This was particularly true of the Army which was greatly composed of the Civilian Militia also called the Colonial Militia during the French & Indian War just barely three decades before.  Most know the militia as the famous “Minute Men.”  The Civilian Militia would be a permanent tradition and part of the armed forces for a long time to come including well up to the late 19^th Century. It is almost as though the “Founding Fathers” could predict the future and hence the term “militia” is used in the wording of the 2^nd Amendment.  The Navy and Marines also relied on “civilian militia” creation as the main requirement was that one had “knowledge of the sea.”  To make it official that militia was important Congress passed The National Militia Act on May 8, 1792 establishing an Uniform Militia.

The following establishment history of American armed forces clearly shows the need for the “civilian militia” to be armed and ready to protect the country in time of need:

The Continental Army: June 14, 1775 became The United States Army June 3, 1784

The Navy of the United Colonies: October 13, 1775 became the United States Navy on April 30, 1798

The Continental Marines: November 10, 1775 became the United States Marine Corps on July 11, 1798

The Revenue Marine: August 4, 1790 became the United States Coast Guard on January 28, 1915

With all this, it was not hard to see that an armed America was greatly needed…but was it needed to kill the Native American Nations?

One of the many freedoms that the American Colonists enjoyed even under British rule was the ownership of firearms.  This right was not opposed by the Monarchy of Britain until after the French & Indian War when King George did not like the abhorring of weapons by the Colonists.  This along with His Majesties Forces patrolling the streets of American towns as well as the Quartering of Soldiers was not well appreciated by the American Colonists.  To avoid the Quartering of Soldiers that the British Empire practiced in America, the U.S. Constitution banned this by passing the 3^rd Amendment (one amendment and part of the Bill of Rights that many Americans do not even know exists and why it exists).

A freedom to possess and own firearms was a great freedom indeed.  It was a freedom that the American Colonists did not take for granted because they knew that only those of aristocracy and great wealth were allowed to own firearms in Europe.  This was also the case in countries of Asia that had firearms.

The First national census of 1790 gives the population of the United Sates at 4 million.  Of course that 4 million did not include any Native American Nations under treaties with the United States or any International Treaties with any other European States.  That number also did not include other Native American Nations, African Slaves, American Born Slaves, Asians and any other persons of color.

A brief note:  the undeclared war with France of 1798-1800 was one of many other reasons that the right to bear arms and have a “state militia” for the protection of the new county was passed.

3.  Protection from Wild Animals including Native Americans

This is the only discussion of the 2^nd Amendment that does not have any references to any laws.   The only notes found on this subject were direct and to the point and mainly for the concern of farmers, trappers, and others living on the American Frontier.  The sad part is that these people put Native Americans into the same category as wild animals.

Considering the United States was a country of 13 states stretching from New Hampshire to Georgia and with only a population of 4 million it is easy to say that the United States was literally all Frontier.  One must remember that at this time there were very few metropolises and the country side began immediately at the city limits.  One could say that as little as just a few miles outside the largest cities of Philadelphia, New York, Boston, Baltimore, and even Charleston one was in the countryside and close to being on the Frontier or actually on the Frontier.

Wild America was truly very much wild in the late 18^th Century.  Many animals that are rare and even extinct today or gravely endangered were in great numbers including medium to large carnivores of the forest.  The constant encroachment of settlers was dangerous activity to both man and beast.  The firearm was the main weapon for protection.

4.  Hunting to put meat on the Table

For all the reasons to have and pass an amendment for the right to bear arms, this is the one that would appear to make the most common sense in relation to the time the amendment was passed.  It is also the only reason that does not mention Native Americans.

One might even think that this reason could not be argued as it was clearly seen obtaining meat for many was only with the use of firearms.  That may have been true for some time but as early as the 19^th Century, environmentalists, animal rights activists and others argued why this need for the hunting of animals for food, sport and fashion.  The almost annihilation of the American Beaver, American Bison and other animals proved that these arguments made a very good point.

These urgings have continued well into the 21^st Century as today it may seem that all of America can get meat already processed from the local supermarket, meat market, restaurant, etc.  That is far from true but it may truly surprise some Americans (mostly in the urban setting) that many people still put meat on the table via the long practice of hunting with a firearm.  This is done for many reasons including costs and the want to not use farm raised animals and massed produced raised animals for food. 

CONCLUSION

The author knows that some readers are asking: “So anybody could keep and bear arms right?”  The answer is a most unequivocal NO!  It is well known that no African Slaves or American Born Slaves or Freed Men of Color could own, possess or carry any firearms.  But what most do not know is it was illegal for Native Americans to possess firearms and it was even illegal to trade firearms with Native Americans.  Of course enforcement of this policy was more “pick and choose” as well as “hit and miss” or just plain “overlooked” and thus it is why Native Americans have had firearms either legally or illegally ever since.  How is that possible?  Well although it was illegal to trade firearms to Native Americans, it was not uncommon for both the federal government and state governments to give firearms to the Native American Nations so they could make war amongst themselves. 

Again the author is not arguing any side or sides of the 2^nd Amendment.  The author is only presenting very important and extremely overlooked information concerning the 2^nd Amendment and its relation to Native Americans. Considering the fact that three main reasons we have the right to keep and bear arms is to protect “ourselves” from the so called “American Indian Savages” and Native American Nations is something that seriously needs to be addressed and changed.

BIBLIOGRAPHY

Constitution of The United States of America

The Declaration of Independence of the United States of America

Anderson, Casey & Horwitz, Joshua.  2009.  Guns, Democracy, and the Insurrectionist Idea.  Ann Arbor: University of Michigan Press. 

Bickford, Charlene, et al.  2004.  Documentary History of the First Federal Congress of the United States of America, March 4, 1789 – March 3, 1791: Correspondence: First Session, September – November 1789.  Johns Hopkins University Press. 

Bogus, Carl.  1998.  The Hidden History of the Second Amendment. University of California at Davis.

Bogus, Carl T.  2001.  The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms.  New York: The New Press.

Cornell, Saul.  2006.  A Well-Regulated Militia – The Founding Fathers and the Origins of Gun Control in America.  Oxford University Press.

Cottrol, R.J.  & Diamond, R.T.  1991.  The Second Amendment: Toward an Afro – Americanist Reconsideration.   Georgetown Law Journal 80: 309 – 361.

Halbrook, Stephen P.  1989.  A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees. Westport, CT: Greenwood Press. 

Kates, D. B. Jr.  1983.  Handgun Prohibition and the Original Meaning of the Second Amendment.  Michigan Law Review 82: 204 – 273.

Levinson, S.L.  1989.  The Embarrassing Second Amendment.  Yale Law Journal 99: 637 – 659.

Levy, Leonard W.  1999.  Origins of the Bill of Rights.  New Haven, CT: Yale University Press.

Malcolm, Joyce Lee.  1996.  To Keep and Bear Arms: The Origins of an Anglo-American Right.  Harvard University Press.

Merkel, William G. & Uviller, H. Richard.  2002.  The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent.  Duke University Press.

Vile, John R.  2005.  The Constitutional Convention of 1787: A Comprehensive Encyclopedia of America’s Founding (2 Volume Set). Santa Barbara, CA: ABC-CLIO.

Wills, Garry.  2000.  Whose Right to Bear Arms Did the Second Amendment Protect?  Boston: Bedford/St. Martin’s.

© 1999, 2011 Native American Composition & Performance, Limited

Jamie K. Oxendine, Lumbee/Creek

Native American Speaker

Director, Black Swamp InterTribal Foundation

A Non-Profit 501(c)(3) Native American Organization

perrysburgpowwow@hotmail.com