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The Invention of an Epidemic · Revisionist History

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Speaker 1: Pushkin.
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Speaker 2: Hello, hello, everyone. It's Malcolm Gladwell. I'm here today to
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Speaker 2: bring you something special. A chapter from my new book,
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Speaker 2: The American Way of Killing, The Invention of an Epidemic.
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Speaker 2: It's chapter two, called The Slave Owner's Lament. And it is,
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Speaker 2: to use a word we love here at Revisionist History,
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Speaker 2: the absolutely bananas story behind a Second Amendment to the U.S. Constitution,
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Speaker 2: the Gun Rights Amendment, with guest appearances by 18th century Virginians,
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Speaker 2: a brilliant Australian linguist, the delightfully named historian Carl Bogus,
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Speaker 2: a lot of cranky Supreme Court justices, and most of all,
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Speaker 2: a charismatic African slave named Jemmy. I am pleased to
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Speaker 2: announce the publication of my new book, The American Way
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Speaker 2: of Killing, The Invention of an Epidemic. Four episodes in
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Speaker 2: all on maybe one of the most complicated and perplexing
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Speaker 2: of American social issues. My new book is coming out
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Speaker 2: September 29th. You can find all of my book tour
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Speaker 2: dates on my website, global.com. Come and see me. And
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Speaker 2: if you're in the New York area, I'll be at
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Speaker 2: the 92nd Street Y in conversation with Katie Tour of
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Speaker 2: NBC News on the evening of September 29th, which should
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Speaker 2: be really fun. Doing this book opened my eyes. and
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Speaker 2: I hope it will do the same for you. You
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Speaker 2: can get The American Way of Killing at whatever bookstore
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Speaker 2: you frequent or online platform you like. And you can
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Speaker 2: find the audiobook version at pushkin.fm slash audiobooks or wherever
1:57
Speaker 2: you get audiobooks.
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Speaker 3: I won't close my eyes and forget my sorrows I
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Speaker 3: don't care if the devil takes tomorrow. Ashes to ashes
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Speaker 3: if I must. I won't leave all my troubles.
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Speaker 2: Dust to dust. Chapter 2. The Slave Owner's Lament In
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Speaker 2: the early years of the 18th century, In the long
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Speaker 2: stretches of marshland known as the South Carolina Low Country,
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Speaker 2: the local authorities decided they needed to dig a network
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Speaker 2: of canals leading off the Stono River. The Stono is
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Speaker 2: a tidal channel just south and west of Charleston, snaking
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Speaker 2: its way between Johns Island and James Island. In the spring,
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Speaker 2: its banks would overflow, flooding roads and homes and farmland,
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Speaker 2: and the idea was to build the equivalent of storm
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Speaker 2: sewers off the river. They were six feet deep and
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Speaker 2: 15 to 20 feet wide, so substantial that many are
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Speaker 2: still there today. Digging them out of the heavy mud
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Speaker 2: was a massive undertaking. The historian Peter Charles Hoffer writes, quote,
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Speaker 2: bending over shovels and mattocks in the snake and insect
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Speaker 2: infected waters, the diggers were exposed to the elements, disease
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Speaker 2: and exhaustion. He went on, the summer heat would create
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Speaker 2: terrible thirst. But the brackish water at the diggers' feet
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Speaker 2: was filled with deadly bacteria, parasites, and waste. This was
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Speaker 2: not a task the white colonists of South Carolina would
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Speaker 2: ever dream of doing themselves. It was a job for
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Speaker 2: their slaves. Imagine a group of two dozen or so bondsmen,
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Speaker 2: as slaves were often euphemistically called, digging ditches off the
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Speaker 2: Stono River. It's early September, 1739. The profits from rice
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Speaker 2: cultivation in that part of South Carolina were so large
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Speaker 2: that it was often cheaper for plantation owners to work
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Speaker 2: their slaves to death and buy replacements than to try
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Speaker 2: and keep their existing slaves alive. So these are men
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Speaker 2: fresh off the boat from Angola and what was then
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Speaker 2: called Congo with a K. It was a Saturday. They
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Speaker 2: had been out in the hot sun all day and
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Speaker 2: faced the prospect of having to do the same thing
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Speaker 2: the following day, because ditch digging was considered so urgent
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Speaker 2: that the normal Sunday day of rest was suspended. They
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Speaker 2: were exhausted. Their white overseer had left early. They were
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Speaker 2: on their own. Across the river from where they were
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Speaker 2: working was a general store called Hutchinson's. At the end
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Speaker 2: of the workday, they crossed over the river and made
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Speaker 2: their way to the store for food and refreshment. No
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Speaker 2: one knows exactly when and why this ragged band of
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Speaker 2: slaves changed course. But between the ditches and Hutchinson's, exhaustion
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Speaker 2: turned to anger. One of the group, Jemmy, emerged as
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Speaker 2: the leader. The store was closed. They broke in. They
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Speaker 2: found two men inside. They killed them both. Someone would
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Speaker 2: later allege that the rebels cut off their victims' heads
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Speaker 2: and impaled them on a stake outside. They looted the store,
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Speaker 2: taking rifles and ammunition and alcohol with them. They started
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Speaker 2: off marching down the road, beating drums and crying, Liberty!
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Speaker 2: Other slaves joined them. It was now the middle of
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Speaker 2: the night. When they saw the houses of slave owners,
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Speaker 2: they made a decision. Is this someone who treats us
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Speaker 2: with even a modicum of kindness? If so, they skipped
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Speaker 2: the house. If not, they burned the house down and
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Speaker 2: killed everyone inside. One contemporary account reads, They marched on
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Speaker 2: with colors displayed and two drums beating, pursuing all the
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Speaker 2: white people they met with and killing man, woman, and
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Speaker 2: child when they could come up to them. End of quote.
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Speaker 2: By morning, they were more than a hundred strong and
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Speaker 2: miles from the Stono River. Since it was Sunday, most
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Speaker 2: of the white population of the Lowcountry was in church,
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Speaker 2: so Jemmy's band marched on without incident. Finally, they were
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Speaker 2: spotted by South Carolina's lieutenant governor, William Bull. Bull had
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Speaker 2: been sounding the alarm for some time that South Carolina's slaves, quote,
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Speaker 2: which were the state's chief support, may in little time
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Speaker 2: become their enemies, if not their masters, and that this
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Speaker 2: government is unable to withstand or prevent it, end of quote.
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Speaker 2: One of his companions raced to a nearby church, Willtown Presbyterian.
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Speaker 2: He rounded up as many men as he could, News spread.
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Speaker 2: Other men grabbed their guns and joined. The rebels were
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Speaker 2: resting on Ponds Ponds Road near Jacksonboro. The two sides clashed,
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Speaker 2: and in a fierce and bloody encounter, the rebels were defeated.
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Speaker 2: If you were a slave owner in the South, you
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Speaker 2: knew about the Stono Rebellion, especially if you lived in
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Speaker 2: South Carolina or Virginia. You read about it in the newspaper.
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Speaker 2: Or someone who was there wrote you about it or
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Speaker 2: told you about it at church. Every white planter knew
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Speaker 2: that a day of reckoning was coming. In Barbados, where
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Speaker 2: many of the founding fathers of the South Carolina colony
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Speaker 2: came from, the British could barely keep their slaves under control.
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Speaker 2: Uprisings were a constant worry on the slave ships coming
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Speaker 2: from Africa. Slaves ran away. They fought back. They engaged
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Speaker 2: in frequent acts of disobedience and resistance. You could whip
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Speaker 2: your slaves into submission, starve them, punish them, or simply
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Speaker 2: sell the troublemakers to someone else. But at the end
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Speaker 2: of the day, you had to live with the reality
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Speaker 2: that it was only a matter of time before the
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Speaker 2: cauldron bubbled over. At the Monticello plantation in Virginia, where
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Speaker 2: Thomas Jefferson lived with his immediate family, there were as
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Speaker 2: many as 140 slaves at any given moment, and only
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Speaker 2: a few white overseers. In South Carolina, slaves composed over 70%
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Speaker 2: of the total population of the colony. And if you
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Speaker 2: ventured out as far as the Stono River, the ratio
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Speaker 2: of black to white on plantations reached 10 to 1,
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Speaker 2: or even 15 to 1. If you had to ride
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Speaker 2: to town on business, or go to the state capitol
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Speaker 2: for a few days, leaving your wife and children at home,
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Speaker 2: could you feel safe? Thomas Jefferson said, would famously describe
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Speaker 2: the practice of slavery as grabbing a wolf by the ears.
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Speaker 2: It was too dangerous to continue, but too dangerous to stop.
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Speaker 2: And then comes the Stoner Rebellion, and that pit in
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Speaker 2: your stomach becomes a molten mass. What was behind Jemmy's insurrection?
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Speaker 2: They were headed south, which suggests that perhaps they were
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Speaker 2: trying to reach Florida, then under Spanish control, where escaped
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Speaker 2: slaves could find safe haven. But if that were the case,
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Speaker 2: why did the slaves go on such a rampage? A
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Speaker 2: more plausible explanation, and to the slave owners of the South,
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Speaker 2: the more terrifying one, is that Jemmy and his followers
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Speaker 2: were just out for blood. This is how the law
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Speaker 2: professor Carl Bogus described it to me.
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Speaker 4: They beat drums and made noise and cried out liberty
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Speaker 4: and flew flags and asked people to join them. I
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Speaker 4: think clearly their objective, we're just going to kill as
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Speaker 4: many of you as possible. Of course, there was a
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Speaker 4: lot of rage.
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Speaker 2: This chapter is about the Second Amendment to the United
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Speaker 2: States Constitution. The sentence that squats at the very center
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Speaker 2: of every discussion of the place of guns in American society.
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Speaker 2: It's about how the conversation around the Second Amendment is
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Speaker 2: every bit as dishonest as the conversation around assault rifles.
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Speaker 2: And why is it dishonest? Because it pretends that we
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Speaker 2: can talk about the meaning of the Second Amendment in
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Speaker 2: a without regard to the motivations of the men who
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Speaker 2: conceived of it back in the 18th century. As historian
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Speaker 2: Peter Charles Hoffer has written, The master portrayed himself as
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Speaker 2: the good father, the head of an extended household, in
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Speaker 2: which slaves were childlike laborers, women were submissive helpmeets, and
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Speaker 2: servants were obedient and loyal. Masters could put on a
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Speaker 2: stern face, like the biblical patriarchs, or act the loving
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Speaker 2: and affectionate father. Hoffer is speaking of the psychology of
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Speaker 2: the white men who grabbed their guns that Sunday morning
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Speaker 2: and rode off to confront Jemmy's band. But it was
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Speaker 2: all an act. He goes on. However he handled sentiment
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Speaker 2: and authority, the planter was an anxious man. The only
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Speaker 2: major country in the world other than the United States
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Speaker 2: to give its citizens the constitutional right to bear arms
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Speaker 2: is Mexico. Article 10 of the Mexican Constitution reads, The
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Speaker 2: inhabitants of the United Mexican States have the right to
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Speaker 2: keep arms at home for their protection and legitimate defense,
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Speaker 2: with the exception of those prohibited by the federal law
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Speaker 2: and those reserved for the exclusive use of the Army, Navy,
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Speaker 2: Air Force and National Guard. Federal law will state the cases, conditions,
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Speaker 2: requirements and places where inhabitants can be authorized to carry weapons.
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Speaker 2: Those two sentences that make up Article 10 were written
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Speaker 2: in 1917, firmly in the modern era. You may or
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Speaker 2: may not agree with its intent, but there is no
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Speaker 2: uncertainty about what it means. It says, plainly, that the
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Speaker 2: Mexican government cannot take guns away from its citizens. At
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Speaker 2: the same time, though, it gives Mexico's lawmakers a very
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Speaker 2: clear set of instructions about how they can limit that right.
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Speaker 2: The government can define the, quote, cases, conditions, requirements, and places,
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Speaker 2: end quote, where guns are and are not allowed. Mexico
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Speaker 2: has had its own very serious problems with lethal violence
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Speaker 2: in recent years. But none of Mexico's problems with controlling
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Speaker 2: guns are caused by any ambiguities in the country's constitution.
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Speaker 2: Article 10 is crystal clear. By contrast, the Second Amendment
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Speaker 2: to the United States Constitution, America's equivalent to Article 10,
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Speaker 2: is a puzzle. A well-regulated militia being necessary to the
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Speaker 2: security of a free state, the right of the people
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Speaker 2: to keep and bear arms, shall not be infringed. That
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Speaker 2: sentence was written in the late 18th century, an era
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Speaker 2: closer to Shakespeare's time than our own, and no one
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Speaker 2: would write a sentence like that today. It starts with
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Speaker 2: what some linguists call an initial being clause, which is
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Speaker 2: a thought that precedes the main body of the sentence. So, quote,
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Speaker 2: a well-regulated militia being necessary to the security of a
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Speaker 2: free state, comma. Then, after that comma, is what's known
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Speaker 2: as the operative clause. Quote, The right of the people
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Speaker 2: to keep and bear arms shall not be infringed. End
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Speaker 2: of quote. We don't use initial being clauses much anymore. Moreover,
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Speaker 2: we would almost never use a being clause next to
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Speaker 2: an operative clause where the two clauses have different subjects.
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Speaker 2: That last quirk is what makes the Second Amendment so
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Speaker 2: awkward to our ears. we keep expecting that militia, the
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Speaker 2: subject of the initial clause, is also going to be
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Speaker 2: the subject of the main clause. And to our grammatical bewilderment,
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Speaker 2: it isn't. The first half of the Second Amendment is
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Speaker 2: perched on the second half like a top hat on
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Speaker 2: an elephant. So, what does it mean? What is the
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Speaker 2: relationship between those two clauses? Does the early reference to
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Speaker 2: a militia mean that the right of the people to
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Speaker 2: keep and bear arms applies strictly in the context of
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Speaker 2: military service? Or is the reason that the first half
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Speaker 2: has as its subject militia and the second half has
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Speaker 2: as its subject right that we're supposed to think of
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Speaker 2: them as separate thoughts, with the initial being clause acting
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Speaker 2: as a kind of throat clearing? Militias are necessary. Also,
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Speaker 2: owning guns is a right. For years, this was an
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Speaker 2: open question. It was the kind of thing that bookish
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Speaker 2: legal scholars or gun enthusiasts might argue over. But the
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Speaker 2: meaning of the Second Amendment wasn't something the Supreme Court
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Speaker 2: spent much time thinking about. In its entire history, through
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Speaker 2: the early years of the 21st century, only a handful
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Speaker 2: of Second Amendment cases had ever come before the court.
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Speaker 2: And they concerned narrow and tangential issues that like whether
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Speaker 2: Americans had the right to carry a sawed-off shotgun in public.
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Speaker 2: The First Amendment, which guarantees the right to free speech,
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Speaker 2: or the 14th Amendment, which grants all Americans equal protection
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Speaker 2: under the law, raised the kinds of questions that commanded
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Speaker 2: the Supreme Court's time. The Second Amendment was an afterthought.
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Speaker 2: All of that changed, however, when in 2008, the Supreme
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Speaker 2: Court agreed to hear a case called District of Columbia v. Heller.
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Speaker 2: It involved a police officer in Washington, D.C. named Dick Heller,
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Speaker 2: who thought he should be able to keep his handgun
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Speaker 2: at home, just as he was able to keep a
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Speaker 2: handgun on him while he was on duty. Under D.C. law, however,
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Speaker 2: personal handgun ownership was forbidden. Denied a gun, Heller sued,
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Speaker 2: saying that D.C. 's law violated the Second Amendment and
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Speaker 2: the case rose all the way to the Supreme Court.
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Speaker 2: Of course, if the United States had a version of
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Speaker 2: Mexico's Article 10 in its constitution, deciding District of Columbia v.
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Speaker 2: Heller would have been straightforward. Was the district's law permissible
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Speaker 2: under the authority given to the government to limit the cases, conditions, requirements,
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Speaker 2: and places where guns are allowed? Plainly, it was. But
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Speaker 2: the Second Amendment is not Mexico's Article 10. It is
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Speaker 2: an initial being clause attached awkwardly to an operative clause
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Speaker 2: like a top hat on an elephant. And in order
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Speaker 2: to figure out whether Heller's Second Amendment rights were violated,
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Speaker 2: the court first had to figure out what the Second
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Speaker 2: Amendment meant. In other words, before they could be jurists,
17:36
Speaker 2: the Supreme Court justices had to be grammarians. So it
17:42
Speaker 2: was that on Tuesday, March 18, 2008, the U.S. Supreme
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Speaker 2: Court assembled to hear this most consequential of cases. Imagine
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Speaker 2: the scene. The justices are seated in a row behind
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Speaker 2: a long, curved mahogany table in the court's central chamber,
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Speaker 2: an imposing room in the grand neoclassical revival style. 44-foot ceilings,
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Speaker 2: 24 ionic columns in marble, shipped from Liguria, Italy. Supreme
18:13
Speaker 2: Court case's begin with oral arguments, when the judges hear
18:18
Speaker 2: lawyers from both sides advocate for their clients. And here
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Speaker 2: is how the proceedings that day begin. The lawyer for
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Speaker 2: the District of Columbia, Walter Dellinger, goes first.
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Speaker 5: The Second Amendment was a direct response to concern over
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Speaker 5: Article I, Section 8 of the Constitution, which gave the
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Speaker 5: new National Congress the surprising, perhaps even the shocking power
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Speaker 5: to organize, arm, and presumably disarm the state militias.
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Speaker 2: To Dellinger, it was clear that the people drafting the
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Speaker 2: Second Amendment were thinking about militias. That's why they put
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Speaker 2: the Being Clause, a well-regulated militia being necessary to the
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Speaker 2: security of a free state, at the beginning of the sentence,
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Speaker 2: framing our understanding of the Operative Clause.
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Speaker 5: The Amendment's first clause confirms... that the right is militia-related.
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Speaker 2: The Second Amendment is about the right to bear arms
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Speaker 2: in the context of military service. The D.C. ban on handguns, then,
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Speaker 2: is perfectly appropriate. Immediately, the Chief Justice of the United States,
19:27
Speaker 2: John Roberts, interrupts.
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Speaker 6: If you're right, Mr.
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Speaker 1: Dellinger, it's certainly an odd way in the Second Amendment
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Speaker 1: to phrase the operative provision if it is limited to
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Speaker 1: state militia's Why would they say the right of the people?
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Speaker 1: In other words, why wouldn't they say state militias have
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Speaker 1: the right to keep arms?
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Speaker 2: The Chief Justice is saying that if the initial being
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Speaker 2: clause and the operative clause were intended to be read
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Speaker 2: as one seamless thought, they would have the same subject.
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Speaker 2: Dellinger shakes his head.
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Speaker 6: Mr.
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Speaker 5: Chief Justice, I believe that the phrase the people and
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Speaker 5: the phrase the militia were really in sync with each other.
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Speaker 5: You will see references in the debates of the Federalist
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Speaker 5: farmer uses the phrase the people are the militia The
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Speaker 5: militia are the people.
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Speaker 2: It may look like two clauses with different subjects, but
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Speaker 2: it should be read as two clauses with synonymous subjects.
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Speaker 2: Got that? The oral argument is only a minute old,
20:35
Speaker 2: and the Supreme Court has turned into the equivalent of
20:38
Speaker 2: a fifth-grade classroom, with the students at the blackboard puzzling
20:43
Speaker 2: over how to parse a sentence. It's Justice Anthony Kennedy's turn.
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Speaker 6: It seems to me that there is an interpretation of
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Speaker 6: the Second Amendment that conforms the two clauses and, in effect,
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Speaker 6: delinks them. The first clause, I submit, can be read
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Speaker 6: consistently with the purpose of simply reaffirming the existence and
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Speaker 6: the importance of the militia clauses. And so, in effect,
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Speaker 6: the amendment says we reaffirm the right to have a militia.
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Speaker 6: We've established it. But in addition, there is a right
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Speaker 6: to bear arms.
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Speaker 2: The being clause, Kennedy is saying, can be delinked from
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Speaker 2: the operative clause. Kennedy is one of those people who
21:28
Speaker 2: see the first clause about a well-regulated militia as an
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Speaker 2: hors d'oeuvre that has nothing to do with the entree.
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Speaker 2: And the entree in his reading is all that matters.
21:38
Speaker 2: The right of the people to keep and bear arms
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Speaker 2: shall not be infringed. The Second Amendment guarantees that everyone
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Speaker 2: in the U.S. has the right to own and carry
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Speaker 2: a gun. D.C. 's law is unconstitutional. Dellinger replies, no, no, no,
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Speaker 2: that makes no sense. That's not how being clauses work.
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Speaker 2: The function of a being clause is to clarify the
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Speaker 2: meaning of the rest of the sentence, to contextualize the
22:04
Speaker 2: operative clause. Otherwise, why would the framers of the Constitution
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Speaker 2: have put it there at all?
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Speaker 5: What you see is a clause that that literally transposes
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Speaker 5: to this because a well-regulated militia is necessary to the
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Speaker 5: security of a free state, the right of the people
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Speaker 5: to keep and bear arms shall not be... The.
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Speaker 2: Back and forth continues. Justice Antonin Scalia chimes in. No, no, no.
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Speaker 7: I don't see how there's any contradiction between reading the
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Speaker 7: second clause as a personal guarantee... and reading the first
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Speaker 7: one as assuring the existence of a militia. The two
22:46
Speaker 7: clauses go together beautifully. Since we need a militia, the
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Speaker 7: right of the people to keep and bear arms shall
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Speaker 7: not be infringed.
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Speaker 2: Dellinger tries to counter.
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Speaker 5: Yes, but once you assume that the clause is designed
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Speaker 5: to protect the militia, surely it's the militia that decides
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Speaker 5: whether personal possession.
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Speaker 2: Kennedy jumps in again. The exercise began with one student
23:20
Speaker 2: at the blackboard with a piece of chalk, diagramming the sentence.
23:23
Speaker 2: But now the whole class is involved, everyone jostling for
23:27
Speaker 2: space at the front of the room while they furiously
23:30
Speaker 2: add their own notations. Asked to weigh in on one
23:34
Speaker 2: of the most serious of all social issues facing the
23:36
Speaker 2: United States, the Supreme Court has instead become hung up
23:42
Speaker 2: on the grammatical structure of a sentence drafted more than
23:45
Speaker 2: 200 years before, written in a style of English that
23:49
Speaker 2: no longer exists. The fight over assault rifles is a
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Speaker 2: dishonest conversation because it pretends to address a real issue,
24:01
Speaker 2: when in fact every assault rifle ban devotes more pages
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Speaker 2: to the high-powered rifles exempt from the ban than the
24:08
Speaker 2: ban itself. But the Second Amendment conversation is equally dishonest.
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Speaker 2: Because you can't debate 18th century grammar if all you
24:17
Speaker 2: know is 21st century grammar. And you can't understand the
24:20
Speaker 2: meaning of an 18th century sentence unless you know something
24:24
Speaker 2: about the person who wrote that sentence. So let's start
24:29
Speaker 2: again and try and imagine what an honest conversation about
24:33
Speaker 2: the Second Amendment looks like. The Second Amendment was written
24:39
Speaker 2: by James Madison, maybe the most intellectually distinguished of the
24:43
Speaker 2: Founding Fathers. Madison once wrote, The use of words is
24:47
Speaker 2: to express ideas. Purpicuity, therefore, requires not only that the
24:53
Speaker 2: ideas should be distinctly formed, but that they should be
24:57
Speaker 2: expressed by words distinctly and exclusively appropriate to them. end
25:02
Speaker 2: of quote. Madison was known for carefully reading the writings
25:06
Speaker 2: of his contemporaries and removing a phrase or editing a
25:10
Speaker 2: passage that he didn't think was quite right. He was precise,
25:14
Speaker 2: almost persnickety about language. As the literary critic Lewis Shadler
25:20
Speaker 2: wrote once in an analysis of Madison's prose, quote, the
25:24
Speaker 2: importance of having proper words in proper places was always
25:29
Speaker 2: strong in his mind, end quote. In his work on
25:33
Speaker 2: the single most important intellectual and civic project of his lifetime, then,
25:39
Speaker 2: it is inconceivable that Madison just dashed off a quick
25:42
Speaker 2: thought and left it at that. Madison never dashed anything off.
25:50
Speaker 2: The reason the Second Amendment is problematic is simply because
25:53
Speaker 2: it was written according to a set of rules and
25:56
Speaker 2: grammatical norms that no longer exist. To understand what he
26:01
Speaker 2: really meant then We have to think as he, a
26:04
Speaker 2: man of the late 18th century, did. We need to
26:08
Speaker 2: enter the mind of James Madison. There are two ways
26:12
Speaker 2: to do this. The first is through the use of
26:14
Speaker 2: what are called linguistic corpora. These are massive research databases
26:21
Speaker 2: that contain hundreds of thousands of digitized documents going back,
26:26
Speaker 2: in some cases, many hundreds of years. Think of them
26:29
Speaker 2: as Google Docs. but for dusty old manuscripts buried deep
26:34
Speaker 2: in library archives. For example, there is something called the
26:38
Speaker 2: Corpus of Founding Era American English, maintained by Brigham Young
26:42
Speaker 2: University in Utah, which holds more than 120,000 separate documents
26:45
Speaker 2: from the period 1765 to 1799, totaling over 130 million words.
26:57
Speaker 2: If you want to know how many times George Washington
27:00
Speaker 2: dangled a participle, the C-O-F-E-A can tell you. So what
27:06
Speaker 2: do linguistic corpora tell us about how James Madison used
27:10
Speaker 2: being clauses? The most extensive empirical analysis of Madison's prose
27:18
Speaker 2: has been done by an Australian linguist named Kari Sullivan.
27:23
Speaker 2: Sullivan picked four corpora that were most relevant to the
27:26
Speaker 2: period both before and after the writing of the Constitution,
27:31
Speaker 2: a span covering 650 years. She made a database of
27:36
Speaker 2: every sentence containing a being clause. She found 1,363. Then
27:41
Speaker 2: she combed through each example, looking at the way the
27:46
Speaker 2: being clause was being deployed. Her first conclusion confirms why
27:51
Speaker 2: Madison's sentence is so mysterious to us today. In the
27:55
Speaker 2: past 100 years, she found, it has become extremely rare
28:00
Speaker 2: to find a sentence in published English where an initial
28:04
Speaker 2: being clause and the main clause that follows have different subjects.
28:09
Speaker 2: She writes, quote, Since this type of being clause fell
28:13
Speaker 2: into disuse about 100 years ago, it is reasonable that
28:17
Speaker 2: modern readers would not have good intuitions about its grammaticality
28:22
Speaker 2: or its meaning. End of quote. Then she asked, did
28:27
Speaker 2: Madison use being clauses? Answer, all the time. She found
28:34
Speaker 2: 976 examples in Madison's writing. Apparently, he loved that construction.
28:41
Speaker 2: Here's an example. I am obliged to write in a
28:45
Speaker 2: position that severely limits the use of any of my limbs, Mr.
28:50
Speaker 2: Jones and myself being lodged in a room not 10
28:54
Speaker 2: foot square and without a single accommodation for writing. End
28:59
Speaker 2: of quote. Finally, Sullivan turns to the crucial question. Were
29:04
Speaker 2: the Justices Roberts, Kennedy, and Scalia correct in their reading
29:09
Speaker 2: of the Second Amendment? That the initial being clause in
29:12
Speaker 2: the Second Amendment does not modify the operative clause. That
29:16
Speaker 2: they are separate thoughts. Remember what Kennedy said? It seems
29:21
Speaker 2: to me that there is an interpretation of the Second
29:23
Speaker 2: Amendment in that conforms the two clauses and, in effect,
29:28
Speaker 2: delinks them? To answer that question, Sullivan went through all
29:34
Speaker 2: 976 of Madison's initial being clauses to see how many
29:40
Speaker 2: times Madison used a being clause in this particular way,
29:45
Speaker 2: as a thought separate from the operative clause next to it.
29:50
Speaker 2: Her answer? Never. In fact, no one in the late
29:54
Speaker 2: 18th century used being clauses this way. That kind of
29:58
Speaker 2: sentence construction, she writes, quote, became ungrammatical over a hundred
30:04
Speaker 2: years before the writing of the Second Amendment. End of quote.
30:08
Speaker 2: People stopped writing sentences like that in the 1660s. A
30:13
Speaker 2: stickler like Madison would no more use a standalone being
30:16
Speaker 2: clause than a contemporary Supreme Court justice would sprinkle thee
30:21
Speaker 2: and thou throughout an opinion. Here's how Madison liked to
30:25
Speaker 2: use being clauses. It being requisite that the office of
30:30
Speaker 2: accountant to the Department of War be placed in other hands,
30:35
Speaker 2: you will consider it as ceasing to be in yours
30:39
Speaker 2: after this date, end of quote. Or in modern English,
30:44
Speaker 2: why am I firing you? Because I want to give
30:47
Speaker 2: the job to someone else. Observation and explanation separated by
30:54
Speaker 2: a comma. Now the Second Amendment makes perfect sense. Why
30:59
Speaker 2: should the right of the people to keep and bear
31:01
Speaker 2: arms not be infringed? Because we don't want anything to
31:06
Speaker 2: threaten the existence. The Second Amendment is about militias. But why?
31:17
Speaker 2: Why were militias so crucial that a special provision was
31:21
Speaker 2: made for them in the Second Amendment to the U.S. Constitution,
31:25
Speaker 2: behind only the right to free speech? To answer that,
31:30
Speaker 2: we must once again take ourselves back to the mind
31:33
Speaker 2: of James Madison. Madison was from Virginia. the largest of
31:38
Speaker 2: the slave-owning states. He grew up on a plantation. His
31:42
Speaker 2: father owned 100 slaves. His grandfather was allegedly poisoned to
31:47
Speaker 2: death by three slaves on the family plantation. James Madison
31:52
Speaker 2: knew all about the Stono Rebellion. He was as petrified
31:56
Speaker 2: as any other white planter. And for the petrified planter,
32:01
Speaker 2: the militias were of special importance. Militias were an English invention,
32:18
Speaker 2: with origins in the passe comitatus, or community force of
32:23
Speaker 2: the Middle Ages. This was hundreds of years before the
32:27
Speaker 2: invention of modern police departments. Law and order was imposed
32:31
Speaker 2: through an informal process. Here is the historian Sally Haddon,
32:36
Speaker 2: the author of one of the definitive studies of the
32:38
Speaker 2: colonial militia, Slave Patrol's Law and Violence in Virginia and
32:43
Speaker 2: the Carolinas.
32:45
Speaker 8: So every county, every shire has a shiree, a sheriff.
32:52
Speaker 8: And somebody goes running to the sheriff and says, Sheriff, Sheriff,
32:57
Speaker 8: somebody has kidnapped my daughter, has stolen my horse, has
33:01
Speaker 8: done something against the law. And the sheriff has no troops.
33:04
Speaker 8: Sheriff has nobody working for him. He's it. Where's he
33:08
Speaker 8: going to get manpower from to go chase that person?
33:10
Speaker 8: So he issues a hewing cry, and the hewing cry
33:13
Speaker 8: basically says all able-bodied individuals are basically supposed to come
33:18
Speaker 8: to his aid and track down the person who's accused.
33:22
Speaker 8: And the reason why people respond is, it could be
33:24
Speaker 8: them tomorrow, right? It's your daughter today, it's my child
33:29
Speaker 8: or my basket or my horse tomorrow.
33:32
Speaker 2: Over time, that informal means of community protection turned into
33:37
Speaker 2: a militia, an organized local force used for emergencies and
33:42
Speaker 2: to confront threats to the community. When colonists came to
33:46
Speaker 2: the New World, they brought the concept of the militia
33:49
Speaker 2: with them. Is your town being threatened by Native Americans?
33:53
Speaker 2: Call in the militia. Are you worried about the Spanish
33:56
Speaker 2: lurking on your border? Call in the militia. In the South,
34:01
Speaker 2: the militia took on even greater importance. Slaves were hard
34:05
Speaker 2: to control, especially at night. They would leave under the
34:08
Speaker 2: cover of darkness and visit friends at other properties. There
34:12
Speaker 2: was a curfew. It had to be enforced. Traveling slaves
34:16
Speaker 2: were supposed to have a pass from their master. Someone
34:19
Speaker 2: had to check to see if that rule was obeyed,
34:21
Speaker 2: and if not, administer a whipping. All able-bodied men in
34:25
Speaker 2: the community took turns volunteering for patrol duty. They were
34:30
Speaker 2: carefully mapped out patrol routes, rules of engagement. If anyone
34:34
Speaker 2: tried to tinker with the system, there were cries of outrage.
34:38
Speaker 2: One plantation owner in South Carolina named Samuel McGowan writes
34:43
Speaker 2: this in a letter to the state's governor. Our state
34:47
Speaker 2: has no other reliance against foreign invasion or internal commotion
34:52
Speaker 2: than her own citizens organized under the militia system into
34:56
Speaker 2: an army of about 40,000 citizen soldiers liable to do
35:01
Speaker 2: ordinary militia duty. The institution of slavery... requires that we
35:06
Speaker 2: should keep up the patrol, and it is intimately connected
35:10
Speaker 2: with and based upon the militia system. Why is McGowan
35:17
Speaker 2: so adamant? Because everyone still remembered the Stono Rebellion. It
35:22
Speaker 2: was a slave patrol that came running from Wiltown Presbyterian
35:25
Speaker 2: Church to confront Jemmy's band on Ponds Ponds Road. The
35:30
Speaker 2: reason the men at church that day had their weapons
35:32
Speaker 2: with them is that able-bodied men in South Carolina had
35:36
Speaker 2: to be ready to serve in the local militia, even
35:39
Speaker 2: on a Sunday. And in response to the Stono rebellion,
35:43
Speaker 2: the planters doubled down. They increased the number of patrols
35:46
Speaker 2: along the Stono River. They convinced the state legislature to
35:51
Speaker 2: prohibit slaves from growing their own food, learning to read,
35:54
Speaker 2: earning money, or gathering in groups. If you are a
35:58
Speaker 2: plantation owner and your slaves, your property, are, without warning,
36:03
Speaker 2: going to march down the highway, killing every white person
36:06
Speaker 2: in sight, you and your neighbors have to be ready.
36:12
Speaker 2: So the members of the patrol have a kind of
36:14
Speaker 2: intimate knowledge of the workings of the area that they're
36:18
Speaker 2: drawn from. This is the guy next door.
36:21
Speaker 8: In fact, this is the guy next door who knows
36:22
Speaker 8: you and knows if you're an enslaved person, knows if
36:26
Speaker 8: you drink, if you're married, how many kids you've got,
36:30
Speaker 8: and could probably predict whether you're likely to run away
36:34
Speaker 8: or not.
36:35
Speaker 2: This was the fragile system of social control that the
36:38
Speaker 2: South created for itself in the first half of the
36:42
Speaker 2: 18th century. Then, in the spring of 1775, the Revolutionary
36:45
Speaker 2: War began. The governor of Virginia, John Murray, Earl of Dunmore,
36:53
Speaker 2: was a British appointee who intended to remain loyal to
36:57
Speaker 2: the crown. He issued a proclamation in which he promised
37:00
Speaker 2: freedom to any slave who wanted to join the British side.
37:04
Speaker 2: The planters panicked.
37:08
Speaker 8: There's a tremendous amount of fear that enslaved people will
37:11
Speaker 8: begin to learn about this, that they will take advantage
37:14
Speaker 8: of that kind of knowledge. That's the kind of rumor
37:16
Speaker 8: that spreads like wildfire, right?
37:19
Speaker 3: And.
37:20
Speaker 8: It's something that is, it's not just an annoyance. It
37:25
Speaker 8: can't be ignored. You know, if the British army shows
37:28
Speaker 8: up in force, you know, who's going to run away?
37:33
Speaker 2: The best estimates, Haddon said, were that as many as
37:36
Speaker 2: 50,000 slaves took up Dunmore's offer and fled to the
37:40
Speaker 2: British side. British ships started sailing up and down the
37:44
Speaker 2: Carolina coast. The threat of more insurrections and desertions became real.
37:50
Speaker 9: So if I own a plantation in South Carolina and
37:55
Speaker 9: the British are sailing up and down the coast, I'm
38:01
Speaker 9: even more anxious than I normally am.
38:04
Speaker 8: Well, I mean, you've got reason to be. The British
38:07
Speaker 8: attack Savannah, and then they attack Charleston. They take Charleston once.
38:12
Speaker 8: They attack, and when they lose it, they take it again.
38:15
Speaker 8: That's 1782. And so there are, I mean, these larger
38:23
Speaker 8: seaport cities face the Atlantic. What's the big advantage that
38:27
Speaker 8: the British have? Their Navy. I mean, they can basically
38:30
Speaker 8: sail into Savannah Harbor or Charleston Harbor, open their gun ports, and,
38:33
Speaker 8: you know, what are the Americans to do?
38:37
Speaker 2: And who is among the most alarmed by Dunmore's proclamation?
38:41
Speaker 2: James Madison. This is his governor, after all. Madison writes
38:47
Speaker 2: to a friend, It is imagined our governor has been
38:50
Speaker 2: tampering with the slaves and that he has it in
38:53
Speaker 2: contemplation to make great use of them in case of
38:57
Speaker 2: a civil war in this province. To say the truth,
39:01
Speaker 2: that is the only part in which this colony is vulnerable.
39:05
Speaker 2: And if we should be subdued, we shall fall like
39:09
Speaker 2: Achilles by the hand of one that knows that secret.
39:14
Speaker 2: An out-of-control slave population was the Achilles' heel of the South, the, quote,
39:23
Speaker 2: only part in which this colony is vulnerable, end quote.
39:27
Speaker 2: Virginia had one chance at survival, a well-regulated militia. In
39:37
Speaker 2: June 1788, delegations from all corners of Virginia gathered in
39:42
Speaker 2: the Richmond Theater in the state's capital. The war had
39:46
Speaker 2: been won. All eyes were to the future, and at
39:49
Speaker 2: issue was whether to ratify the Constitution of the brand-new
39:53
Speaker 2: idea known as the United States of America. Virginia was
39:58
Speaker 2: the largest and most important of all the colonies that
40:01
Speaker 2: had just defeated the British Army. Seven of the 56
40:05
Speaker 2: signatories to the Declaration of Independence were from Virginia. George
40:09
Speaker 2: Washington was a Virginian. So were Thomas Jefferson, James Madison,
40:15
Speaker 2: and James Monroe, each of whom would go on to
40:17
Speaker 2: occupy the White House. In order to approve the Constitution,
40:22
Speaker 2: nine of the 13 colonies needed to vote in favor.
40:26
Speaker 2: And without Virginia's approval, the movement to create a federal
40:30
Speaker 2: United States would in all likelihood die. On one side
40:35
Speaker 2: was James Madison, the leading Federalist of his day. Without
40:39
Speaker 2: a strong central government, Madison thought the states would lapse
40:44
Speaker 2: into chaos and economic dysfunction. On the other side were
40:48
Speaker 2: the Anti-Federalists, led by the former governor of Virginia, Patrick Henry.
40:54
Speaker 2: he of the famous revolutionary war cry, give me liberty
40:58
Speaker 2: or give me death. Henry read the draft of the
41:01
Speaker 2: proposed Constitution and was deeply suspicious. For 25 straight days
41:08
Speaker 2: in 1788, almost the entire month of June, all eyes
41:14
Speaker 2: were on the Richmond Theater. Newspapers wrote daily updates. Crowds
41:19
Speaker 2: thronged the public galleries. Countless others gathered in the streets outside.
41:24
Speaker 2: This is how the law professor Carl Bogus describes the
41:28
Speaker 2: Virginia Convention.
41:29
Speaker 4: It is clearly one of the most dramatic events in
41:37
Speaker 4: the formation of the United States. With this showdown between
41:43
Speaker 4: this collection of luminaries, the Federalist body and the Anti-Federalist body,
41:49
Speaker 4: both staffed with among the most famous people at the time—
41:54
Speaker 4: battling about whether they're going to ratify the Constitution, and
41:59
Speaker 4: that itself is rare. And what makes this extraordinarily rare
42:06
Speaker 4: is we have a transcript of it, a pretty damn
42:10
Speaker 4: good transcript of it, which was highly unusual then. Highly,
42:15
Speaker 4: highly unusual.
42:17
Speaker 2: The transcript of the Richmond debates tells us exactly why
42:21
Speaker 2: Patrick Henry and those allied with him were so dubious
42:25
Speaker 2: of the proposed Constitution. And it tells us exactly what
42:30
Speaker 2: James Madison said and did to win them over. How
42:34
Speaker 2: much attention had historians paid to the Virginia ratifying convention?
42:42
Speaker 4: Little or none. I mean, I wasn't I hadn't read it.
42:48
Speaker 4: I don't recall reading anything about it until I went
42:52
Speaker 4: and searched it out and read it.
42:55
Speaker 2: Yeah, which is weird because, as you argue, it's an
42:58
Speaker 2: incredibly crucial... The Constitution is hanging in the balance. What
43:04
Speaker 2: Bogus discovered was that in the pivotal debates in the
43:07
Speaker 2: Richmond Theatre, one issue kept coming up again and again.
43:12
Speaker 2: The militia. Patrick Henry said, was worried that the Constitution,
43:18
Speaker 2: as proposed, would shut down the malicious system. Everything would
43:22
Speaker 2: now be in the hands of the federal government, a
43:25
Speaker 2: federal government likely to be dominated by northern states that
43:29
Speaker 2: were either hostile or indifferent to the institution of slavery.
43:34
Speaker 2: Here's what Henry said in one of the many speeches
43:37
Speaker 2: he gave to the ratifying convention, referring to the part
43:41
Speaker 2: of the proposed Constitution that gave Congress sweeping powers, over
43:46
Speaker 2: state militias. By this, sir, you see that their control
43:51
Speaker 2: over our last and best defense is unlimited. If they
43:56
Speaker 2: neglect or refuse to discipline or arm our militia, they
44:00
Speaker 2: will be useless. The states can do neither, this power
44:04
Speaker 2: being exclusively given to Congress. Our situation will be deplorable indeed.
44:13
Speaker 2: Henry didn't need to spell out what he meant by
44:16
Speaker 2: that word, deplorable. He was speaking to a convention full
44:21
Speaker 2: of anxious slave owners who went to bed every night
44:24
Speaker 2: in Richmond over those 25 long days, worried sick about
44:28
Speaker 2: the safety of their children and wives back home on
44:31
Speaker 2: the plantation. James Madison had a mutiny on his hands.
44:39
Speaker 2: If he wanted to save the Constitution... he needed to
44:42
Speaker 2: find a way to win over the Virginia delegation. He
44:45
Speaker 2: needed to reassure them that they could ratify the Constitution
44:50
Speaker 2: without losing the armed patrol that was so essential to
44:53
Speaker 2: keeping their slaves in line. So what did Madison do?
44:57
Speaker 2: He wrote an amendment to the U.S. Constitution aimed squarely
45:01
Speaker 2: at the doubters in Richmond who had spent 25 days
45:05
Speaker 2: questioning his loyalty to his home state. One sentence said,
45:10
Speaker 2: with a meaning his fellow Virginians could easily deduce.
45:15
Speaker 4: The Second Amendment for him is simply about reassuring his
45:20
Speaker 4: constituents and the South generally, but especially his constituents and
45:28
Speaker 4: other political actors in Virginia, that the Constitution is not
45:37
Speaker 4: handing over the northern states a tool to undermine the
45:43
Speaker 4: slave system by emasculating our militia. And I think that's
45:50
Speaker 4: all he was focused on.
45:56
Speaker 2: This is not the way that gun rights activists have
45:59
Speaker 2: interpreted the Second Amendment. They have ignored Madison's predicament in Richmond.
46:05
Speaker 2: They have ignored the anxiety of the plantation class over
46:09
Speaker 2: their ownership of other human beings. They have ignored the
46:13
Speaker 2: grammatical norms of 18th century writing. The Supreme Court's final
46:17
Speaker 2: opinion in the Heller case decided that Madison's problematic initial
46:21
Speaker 2: being clause was merely prefatory, there only to, quote, resolve
46:28
Speaker 2: an ambiguity in the operative clause, end quote. The opinion
46:33
Speaker 2: went on with a shrug. But apart from that clarifying function,
46:39
Speaker 2: a prefatory clause does not limit or expand the scope
46:43
Speaker 2: of the operative clause, end quote. That is not an
46:48
Speaker 2: honest reading of the evidence. But to be honest would
46:52
Speaker 2: require acknowledging the Second Amendment for what it really is,
46:56
Speaker 2: a grubby compromise intended to perpetuate the darkest chapter in
47:01
Speaker 2: American history. A conversation becomes dishonest when either side avoids
47:08
Speaker 2: the truth because it is too difficult.
47:11
Speaker 4: If I say, close your eyes, and I say, the
47:16
Speaker 4: Second Amendment, what image comes into your mind? I think
47:20
Speaker 4: most people would say, it's the musket in the hands
47:22
Speaker 4: of the Minutemen in Lexington and Concord. And I'm saying, no,
47:28
Speaker 4: it's not. The real image that is the correct image is...
47:36
Speaker 4: the musket in the hands of the slave patrollers.
47:39
Speaker 6: In the South.
47:45
Speaker 2: This was an excerpt from my upcoming book, The American
47:48
Speaker 2: Way of Killing, The Invention of an Epidemic. You can
47:51
Speaker 2: buy the print copy at whatever bookstores you frequent or
47:54
Speaker 2: online services you use, and you can get the American
47:58
Speaker 2: Way of Killing audiobook at pushkin.fm slash audiobooks or wherever
48:03
Speaker 2: you get audiobooks. The audio version The cover design for
48:07
Speaker 2: The American Way of Killing was done by Greg Kulik.
48:10
Speaker 2: At Pushkin Audiobooks, the publisher is Nicole Optenbosch. The associate
48:14
Speaker 2: publisher is as Jasmine Faustino, and the director of narrative
48:38
Speaker 2: projects for Pushkin is Jacob Smith. The song Troubles that
48:42
Speaker 2: you hear throughout the book was written by Drew Holcomb,
48:45
Speaker 2: Hansi Music, BMI, administered by Downtown Music Publishing, and performed
48:50
Speaker 2: by Drew Holcomb and the Neighbors, courtesy of Magnolia Music.
48:54
Speaker 2: I'm Malcolm Gladwell.