Carl T. BogusProfessor of Law Emeritus, Roger Williams University
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MADISON'S MILITIA: THE HIDDEN HISTORY OF THE SECOND AMENDMENT

OXFORD UNIVERSITY PRESS

In Madison's Militia, Carl Bogus illuminates why James Madison and the First Congress included the right to bear arms in the Bill of Rights. Linking together dramatic accounts of slave uprisings and electric debates over whether the Constitution should be ratified, Bogus shows that--contrary to conventional wisdom--the fitting symbol of the Second Amendment is not the musket in the hands of the minuteman on Lexington Green but the musket wielded by a slave patrol member in the South.

Bogus begins with a dramatic rendering of the showdown in Virginia between James Madison and his federalist allies, who were arguing for ratification of the new Constitution, and Patrick Henry and the antifederalists, who were arguing against it. Henry accused Madison of supporting a constitution that empowered Congress to disarm the militia, on which the South relied for slave control. The narrative then proceeds to the First Congress, where Madison had to make good on a congressional campaign promise to write a Bill of Rights--and seizing that opportunity to solve the problem Henry had raised.

Three other collections of stories--on slave insurrections, Revolutionary War battles, and the English Declaration of Rights--are skillfully woven into the narrative and show how arming ragtag militias was never the primary goal of the amendment. And as the puzzle pieces come together, even initially skeptical readers will be surprised by the completed picture: one that forcefully demonstrates that the Second Amendment was intended in the first instance to protect slaveholders from the people they owned.

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"[D]emonstrates conclusively that the amendment’s roots lay in enslavers wanting to have the right to have weapons to use against freedom seekers. Readers interested in the Second Amendment’s origins or in assessing arguments about its meaning will likely and deeply appreciate this comprehensive history." -- Library Journal

"[P]ersuavsive and provocative history....a vital reconsideration of a contentious constitutional amendment." -- Publishers Weekly

"A welcome study of what is surely the most controversial entry in the Bill of Rights." -- Kirkus

A book of “verve and wit” that makes “an essential contribution to the historical literature on the origins of the Second Amendment.” – New England Quarterly

Available here: Sam Hankin's conversation with Professor Bogus about Madison's Militia on the Avid Reader Show.

Available here: Doug Becker's conversation with Professor Bogus about Madison's Militia on Scholars' Circle.

Available here: Professor Bogus' appearance on Make it Plain with Rev. Mark Thompson.

Available here: Professor Bogus' appearance on Keeping Democracy Alive with Burt Cohen.

Available here: Madison's Militia takes The Page 99 Test.

Available here: Professor Bogus answers five questions about Madison's Militia for The Author's Corner.

Available here: Professor Bogus's article "Why Did Madison Write the Second Amendment?" for the History News Network.

Available here: The Oxford Side Comment -- Professor Bogus reveals five things that will suprise you in Madison's Militia.

Available at:

About the Author

 

Carl T. Bogus,
Professor of Law Emeritus,
Roger Williams University.

Advance Praise for Madison's Militia

 “At a time when the Supreme Court is increasingly looking at the original meaning in interpreting the Constitution, Professor Carl Bogus has written a riveting account of how the Second Amendment actually came to be added to the Constitution.  Contrary to the conventional wisdom, Professor Bogus shows that the Second Amendment was meant to protect the slave system and keep Congress from disarming slave patrols.  This is an essential history for all lawyers, judges, students, and individuals who are researching the original understanding of the Second Amendment and gun rights.” —Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law

“Bogus offers a fresh and fearless investigation into why Madison and his contemporaries added the right to keep and bear arms to the Constitution.  Uncluttered by myth or hagiography, this book will likely become the definitive account of the darker side of the Second Amendment’s drafting and ratification.” —Darrell A.H. Miller, Duke Law School

“A surprisingly fast-paced account of the events leading up to the Second Amendment. Bogus persuasively suggests that, while Madison and other Founders paid lip-service to the dedication of militias and the threat of standing armies, their primary concern was to suppress insurrections by the people they enslaved. Madison’s Militia undermines any claim by the Roberts Court/the Supreme Court to locate the individual right to bear arms in an originalist reading of the Constitution.”—Jeannine DeLombard, author, In the Shadow of the Gallows: Race, Crime, and American Civic Identity

“Carl Bogus makes an important contribution to efforts to discern the meaning of the 27 words that make up the Second Amendment to the United States Constitution.  Bogus’ work provides a rich context to understand what those who drafted and debated the amendment faced, as well as what they hoped to accomplish.  Bogus invites readers to reconsider the racially neutral right to bear arms that the amendment protects in light of the immediate racialized threat of uprisings and rebellions by enslaved people against their enslavers. His book offers a radically different way to read and understand the amendment which aligns with, rather than revises, the history surrounding its ratification.” —Lisa A. Crooms-Robinson, Professor, Howard University School of Law

“Slavery was the main event—not a sideshow—as the U.S. was founded. In this insightful, crisply written book Carl Bogus tells us that what impelled the now infamous Second Amendment was precisely the rampant fear of slave insurrections, necessitating the formation of a well-armed militia.”—Gerald Horne, author, The Counter-Revolution of 1776: Slave Resistance and the Origins of the United States of America

Madison’s Militia offers an illuminating overview of the tangled history of the Second Amendment and its “right to bear arms.”  To understand its presence in the Constitution, Bogus demonstrates, requires grappling with the Glorious Revolution in 1688, the military history of the American revolution (and the decidedly mixed role played by citizen militias), and the deep fears of Southern slaveowners (including James Madison) of insurrections led by enslaved persons they well knew, because of events in Jamaica, South Carolina, and New York, among others, to be dissatisfied with their condition.   Whatever the limitations of citizen militias in actually fighting wars, they were indispensable in Virginia and other states worried about suppressing any slave rebellions and about the possibility that the new national government would prove insufficiently protective of slavery.  American historians are increasingly studying the intersections of slavery and a desire to maintain white supremacy, and Bogus provides a valuable, extremely well-written, demonstration of those intersections. —Sanford Levinson, University of Texas Law School and author of Framed:  America’s 51 Constitutions and the Crisis of Governance

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ANTITRUST PROJECT

It is a fundamental principle of American democracy that too much power must not be placed in one set of hands. We rely on constitutional law, which includes separation of powers and checks and balances among the branches of government, among other protections, to guard against consolidated governmental power. While antitrust law should shoulder a parallel role with respect to consolidated corporate power, it is abidicating that responsibility. Today, antitrust focuses entirely on consumer welfare and closes its eyes to the social and political consequences of excessive corporate power. In the articles linked below, Professor Bogus argues for a paradigm shift in antitrust law. This topic needs to become a subject of wide public debate; it is too critical to the fabric of American society to be left exclusively to specialists. The articles below, therefore, are accessible to all readers, including those who are neither lawyers nor economists.

The New Road to Serfdom: The Curse of Bigness and the Failure of Antitrust, 49 University of Michigan Journal of Law Reform 1 (2015). This article provides an overview of Professor Bogus' thesis. It explains why antitrust needs to be concerned with consolidated corporate power, and it demonstrates that that vision of antitrust has a venerable legacy, extending back to the seventeenth century England, running through American history, and influencing the enactment of U.S. antitrust laws. 

Trust-Busting: Labor's Forgotten Cause, 26 New Labor Forum 46 (2017). This article deals with the implications of antitrust for American workers.

Books and Olive Oil: Why Antitrust Must Deal with Consolidated Corporate Power, 52 University of Michigan Journal of Law Reform 265 (2019). What is more important: that ebooks be priced as cheaply as possible, or that one firm does not control the distribution of all books in the United States? For most Americans, the choice of obvious. Yet, amazingly, antitrust regulators opted for cheap ebooks. This case study, involving an epic battle between Amazon and Apple, shows how current antitrust doctrine can lead regulators and courts astray.  

Corporate Giantism Hurts Our Democracy, Providence Journal, August 14, 2019. In this op-ed article, Professor Bogus proposes a merger cap that would prevent corporations of a certain size from acquiring or merging with other companies.

Why We Need a Merger Cap: An Antitrust Lesson from General Electric, 51 Journal of Legislation 1 (2025). This article argues that once a corporation reaches a certain size, it should be prohibited from growing still larger through mergers or acquistions. In support of that proposal, the article devles in the history of GE from 1981 to 2017. During that time, under two CEOs, GE acquired nearly 1,380 other companies. GE was then considered the best managed firm in America. If any company should have been able to make smart acquistions, it should have been GE. Yet, nearly all of those acquistions failed. Rather than making GE more efficicient or more innovative, those acqusitions all but destroyed a revered company. This mega-case study confirms what research has previously shown: Most mergers do not work. But there is much more to this story. GE's mergers not only harmed GE; they caused widespread social harm, thus illustrating why we need a merger cap. 

> Here  is a link to "Lessons from General Electric Show Why We Need a Merger Cap," ProMarket, March 13, 2025, a short piiee adapted from the article in the Journal of Legislation.

> Here is a link to a half-hour discussion beween Ralph Nader and Carl T. Bogus, broadcast on the Ralph Nader Radio Hour, regarding Professor Bogus' new article, "The New Road to Serfdom: The Curse of Bigness and the Failure of Antitrust."

> Here is a link to a short opinion piece by Professor Bogus for The Harvard Law Record titled "What Every Harvard Law Student Should Know About Antitrust."

 

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