Monday, April 24, 2017

How Professional Historians Destroy Historians' Credibility

Fake Second Amendment History

[Updated April 26&27, 2017]
     Jonathan Gienapp, an assistant professor of history at Stanford University, recently wrote a long article urging all historians to oppose confirmation of Neil Gorsuch as an Associate Justice of the U.S. Supreme Court. What was the basis for this opposition? A disagreement between a "few historians" (including Professors Gienapp, Jack Rakove, and Saul Cornell) and originalists in the legal community regarding which of the two professions can best understand historical materials from the Founding Era. Reading Professor Gienapp's article, one is left with the distinct impression that originalists, such as former Supreme Court Justice Antonin Scalia (and now Justice Gorsuch) eschew any reliance upon history in cases involving the language and intent of the U.S. Constitution. Gienapp's view is that such originalists "have escaped history".

"How originalists have exploited their new fortifications to repel historical expertise is best captured in their reaction to the so-called historians’ amicus brief filed for the Supreme Court in conjunction with the controversial Second Amendment case from 2008, District of Columbia v. Heller... That case—which centered on a D. C. handgun ban—ultimately turned on the original meaning of the amendment. And historians reached the diametrically opposite conclusion from the one advanced by Justice Scalia in the Court’s majority opinion...."
[The above link includes my direct response to Professor Gienapp's article.]

     There are multiple historical problems with the views expressed in Professor Gienapp's article, and some of them will be addressed in this post. First is the assumption that the Heller historians not only got the Second Amendment's history right, but also backed up their conclusion with proof based on primary period sources, and took all of the relevant period sources into account in their examination of the subject. Along with that assumption comes the corollary assumption that it must be Justice Scalia and the Heller majority involved in any historical error. The second problem with the article is the assumption that only historians can accurately get at historical reality, with its corollary that everyone else must rely upon professional historians' views because of their academic credentials. A third problem is that, if these assumptions are incorrect, and they are, then reliance upon the historians' Heller brief as poster child for politicized action against a judicial nomination is historically foundationless politicization of the profession, which it is.
     Neither Justice Scalia for the majority of the Court, nor Justice Stevens in his Heller dissent, cited the professional historians' brief for American Bill of Rights history, with Stevens citing it only once about the English Bill of Rights. There are at least two reasons for lack of reliance upon it by the justices in Heller. First, there is very little actual American Bill of Rights history to be found in the historians' brief, and second, the brief contains numerous errors of fact, erroneously conflated history, and extensive irrelevant material as far as the actual historical point in the Heller dispute. Justice Stevens dissent, which largely followed right along with the historians' assertions in their brief, still had to directly contradict it twice regarding specific historical points. The historians' Heller brief was so historically unreliable that direct citation regarding American history was not possible even by its supporters in the Supreme Court's minority.
     One example of that historical unreliability is a multiple error found in just one assertion in the brief regarding how many of the eight early states with declarations of rights made them part of their state's constitution:

“In only two states (Pennsylvania in 1776, Massachusetts in 1780) were they made part of the actual constitutions.”

     This claim in the historians' Heller brief is contradicted multiple times in three of the period sources actually under discussion by the historians. Three states, North Carolina 1776, Vermont 1777, and New Hampshire 1784 copied various features of the two named states making their declarations of rights part of their constitutions. Vermont alone had three different designations to that effect within its constitution. None of the fifteen professional historian signers of the Heller brief were familiar enough with the relevant period sources to recognize their assertion was in direct conflict with historical reality, a point analyzed and documented in this post at this blog.  Is this what Professor Gienapp refers to as "historical expertise"? This intellectual embarrassment of the first order from the historians' brief is just the tip of an iceberg of such errors, and those go hand in hand with a fundamental conflation error mixing up Founding Era Second Amendment Bill of Rights predecessors with entirely unrelated militia powers amendment history, as analyzed and documented in this post.
     Reliance upon the historical accuracy of the professional historians' Heller brief is just as historically risky and illogical as reliance upon the historical accuracy of Michael Bellesiles book, Arming America, for which a Bancroft prize was awarded and later rescinded. The difference between the two situations being the Heller brief historians are not accused of veracity problems. Instead, they are clearly not overly familiar with relevant period sources, and they appear to have sought out and advanced historical claims that support a preexisting belief regarding the disputed point in the Heller case. There is no doubt that the Heller historians believe the faulty information they provided to the Supreme Court to be accurate. There is also no doubt their brief is the perfect example of History Office Law, twisted history in a legal argument from historians. The opposite, twisted history in a legal argument from lawyers is Law Office History.
     The errors, conflated history, and missing essential information of the historians' Heller brief were analyzed and documented here at On Second Opinion Blog in early 2009 in a twenty-four part series, Root Causes Of Never-Ending Second Amendment Dispute. This Blog was established specifically to publicize historically erroneous assertions by professional historians, Supreme Court justices, and various authors concerning the Second Amendment. The Fisking Index Page link at the top of this page provides direct one click access to each of the twenty-four parts of the series for those who really want to know the details of Second Amendment history and how the professional historians managed to make such a train wreck of American history from it.

     The study of history is the study of period documentation. Historians' writings about history are not history, they are historiography, writings or stories about history by historians. Confusing history and historiography is a mistake. The suggestion by Professor Gienapp that somehow Justice Scalia has "escaped history" regarding the Second Amendment in the Heller case is patently absurd. The Origin Of The Second Amendment, the only comprehensive reprint of source period documents on the subject was the most cited historical collection among the briefs to the Court, and it was cited by both sides in the dispute as well as the majority opinion from Justice Scalia. The Origin Of The Second Amendment was cited in the Circuit Court for the District of Columbia's Parker decision (2007), which was appealed to the Supreme Court as the Heller case and upheld in the Heller decision, and was also cited in the prior Fifth Circuit Court of Appeals U.S. vs Emerson decision (2001). There were over a hundred such citations in the Emerson decision, which itself was cited in the Parker decision. Thus, there is an extensive background of period historical evidence in linked Federal cases that does not appear within the Heller decision itself.
     Also, a newly published history of the Second Amendment, The Founders' View Of The Right To Bear Arms, which was based directly on the period sources reprinted in The Origin Of The Second Amendment, was cited to the Supreme Court in numerous Heller historical briefs. The Founders' View Of The Right To Bear Arms traces and documents every aspect of Second Amendment related terminology and development from Colonial Period use through the Revolutionary and Founding Eras until the final version was ratified by the requisite number of state legislatures.

     All Supreme Court justices in the Heller case had equal opportunity to examine this entire historical record, which was placed directly before them right along with the new, clear history linking the essential information into a logical whole. Most of the justices in the Heller case paid attention to that record, making certain their ruling was consistent with it. By the way, the historical source collection and history described above did not originate with professional historians, but instead with the author of this blog, an avocational historian. This information makes clear it was not the case Justice Scalia "escaped history", but rather that he escaped the faulty historiography and "historical expertise" of professional historians wishing to impose their fallacious opinions upon the Court.
     A more historically accurate view of this affair is that it was Justice Stevens and those supporting his dissenting Heller opinion who "escaped history" by relying on the Heller historians' unfounded assertions and erroneous history. Justice Stevens dissenting opinion suffers from most of the historical defects found within the historian's brief itself, with some of the historical problems made worse. It was the professional historians brief that escaped history and provided the Court with an unsupportable alternative historical outlook that was at odds with American historical reality.
     Professional historians are supposed to study all of the period sources and rely upon them to explicate historical reality. Professor Gienapp, by accepting without question the Heller case brief from Professors Rakove, Cornell, and others, at least as far as the Second Amendment is concerned, is complicit in helping to mold history to fit a certain belief that is at odds with the historical record. Most people wish to understand their country's actual past rather than be indoctrinated with historians' unfounded opinions about it. Completely failing to do what historians are supposed to do is how the profession destroys its own credibility.

Tuesday, January 31, 2017

Thank You & Blog Update

Thank You To Several Pro-Rights Bloggers


Several bloggers are long overdue recognition for bringing my Second Amendment historical research to the attention of their readers during the Bill of Rights anniversary Amazon promotion, December 15 through 31, 2016.

Thank you
David Codrea - The War On Guns
David Hardy - Of Arms & The Law
Glenn Reynolds and Helen Smith - INSTAPUNDIT.COM


A number of these bloggers' readers took advantage of the Bill of Rights Amazon promotion to obtain copies of the authoritative books on the subject of the Second Amendment's history and save money at the same time.

Blog Update

The second half of my Heller dissent analysis under the title, Justice Stevens' Train Wreck of American History, starting with Part 7 will appear in the near future (hopefully).  Also, an analysis of Michael Waldman's Second Amendment book, as well as Carl Bogus' The Hidden History of the Second Amendment are planned. The latter two have received much publicity during several prior gun control pushes from the media. Their historically defective foundations need to be examined and documented.

Note: I have an Amazon review of Waldman's book, The Second Amendment: A Biography at this link.

Thursday, December 15, 2016

The Authoritative Books On Second Amendment History Amazon Promotion

Bill Of Rights Day Anniversary Holiday Half Price Book Sale

Beginning on December 15th, the anniversary of U.S. Bill of Rights ratification, and running through the Holiday Season, The Origin of the Second Amendment document collection and The Founders' View of the Right to Bear Arms history - the authoritative books on the subject of the Second Amendment's history according to Alan Gura - will be half price at Amazon.

Alan Gura won the Supreme Court Heller case by applying a reality based litigation strategy to the Second Amendment dispute. A significant reason he was able to win the case supporting our right to keep and bear arms was because he relied on thoroughly documented facts of American history relative to the Second Amendment's development and meaning. Mr. Gura possessed the only pre-publication copy of The Founders' View of the Right to Bear Arms in late 2007, and he used it very effectively to argue the individual rights nature of the Second Amendment's protection. 

The Founders' View of the Right to Bear Arms presents and documents every historical fact regarding development of Second Amendment related bill of rights language from the early Revolutionary Era to the final amendment wording, and it places these facts into their actual historical context, which was always a limit on government. In addition to normal footnotes for earlier periods, the vast majority of citations in The Founders' View of the Right to Bear Arms are direct cites to page numbers of documents in The Origin of the Second Amendment collection, which reprints virtually all of the relevant Founding Era sources.


In the Heller case, The Origin of the Second Amendment was the most cited document collection among the historical briefs, and was cited several times in Justice Scalia's majority decision. It was also cited extensively in the prior Emerson and Parker decisions from U.S. Circuit Courts of Appeals. The Founders' View of the Right to Bear Arms was cited in every historical brief supporting individual rights in Heller, and was heavily relied upon by Alan Gura to help win the case.


For those who would like to know everything there is to know about the Second Amendment's development and possess copies of the relevant documents, the current Amazon Promotion Half Price Sale is an excellent opportunity. Do not pass this promotion up, and please let others know about it. A set of The Founders' View of the Right to Bear Arms and paperback copy of The Origin of the Second Amendment can be obtained during this holiday season for the same price as either one at the normal Amazon price. Additionally, for the first time ever, hardcover copies of The Origin of the Second Amendment are also half price for this promotion.


Now is the time to obtain copies of the authoritative books on the subject of the Second Amendment's history. Whether for yourself, as gifts for loved ones, friends, or Second Amendment interested colleagues, maybe even reasonable opponents of your views, take advantage of the current holiday season sale to obtain and give the only books to receive Alan Gura's unsolicited "the authoritative books" endorsement.


Titles are linked to Amazon pages. Bill of Rights Day Holiday Sale copies of The Founders' View of the Right to Bear Arms and paperback copies of The Origin of the Second Amendment are $15.00 each from the publisher (Golden Oak Books) during this promotional period. Promotional copies of hardcover edition The Origin of the Second Amendment are $47.50 from the publisher. Note: These books are all self-published by David E. Young (Golden Oak Books), who is the author of this Blog and a Second Amendment scholar for nearly a half century.

Monday, July 4, 2016

The Meaning Of 'A Well Regulated Militia'


A Well Regulated Militia Composed Of The Body Of The People 
Updated July 9, 2016

The Revolutionary Era language within the Second Amendment that sometimes confuses modern Americans is the well regulated militia terminology within its first clause. Americans today are so over-regulated by government that the phrase well regulated militia is automatically assumed to mean government regulated militia. This is clearly not the case with the Second Amendment and its state bill of rights predecessors with the same terminology because their context was always a limit on government, either state or Federal, and well regulated could not have meant government regulated in that context. To discover exactly what the founding generation understood a well regulated militia to mean, all that is necessary is to look at what our ancestors said and wrote regarding exactly who the militia were understood to be and in what context 'a well regulated militia' was used by them within American bills of rights.

First, how was the term "militia" used in early America? Since we are dealing with the Ratification Era, Alexander Hamilton's discussion of militia in The Federalist #29 will help illustrate common period usage. Hamilton was not discussing a Bill of Rights provision limiting government powers. He was explaining what the new Federal Government should do after Ratification of the Constitution under its delegated Article 1, Section 8 powers over the militia. Hamilton's usage was essentially the same as that used previously during the American Revolution and earlier in the Colonial Period.

The Federalist #29 provides three different definitions of the term militia that are entirely consistent. Hamilton described the militia as:
"the great body of the yeomanry and of the other classes of citizens"
"the people at large"
"the whole nation"
. [The Origin Of The Second Amendment, (hereafter OSA) pp.197-198]

In other words, Hamilton equated the people and the militia, something that was common period usage. Hamilton also provided a definition for "a well regulated militia".

"To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions as often as might be necessary, to acquire the degree of perfection which would intitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss." [OSA, p.197]

According to Hamilton, to be considered well regulated, the militia had to be effective for defense by having a certain degree of perfection in the use of arms. Well regulated was a character of the militia resulting from their preparedness, not something that could be suddenly bestowed upon the militia by passage of a law. Well regulated did not mean authorized by government.

Starting with these definitions - the militia are understood to be the people, and well regulated means the people are capable of defense - look at the first American state declaration of rights, that of Virginia from June 12, 1776 (prior to the Declaration of Independence). The introduction to Virginia's State Declaration of Rights stated:

"A declaration of rights made by the representatives of the good people of Virginia, assembled in full and free Convention; which rights do pertain to them, and their posterity, as the basis and foundation of government."  [OSA, p.747]

Section 13 of the Declaration contained the first American bill of rights predecessor of the Second Amendment and the first use of 'well regulated militia' language in such a uniquely American context:

"Sec. 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state;" [OSA, pp.747-748]

This provision and its “well-regulated militia” terminology was clearly understood as a limit on the state government. Both George Mason, who wrote the language, and Patrick Henry, who helped adopt it, stated this fact much later in the Virginia State Ratifying Convention of 1788, where Mason indicated:

"there were certain great and important rights, which the people, by their bill of rights, declared to be paramount to the power of the legislature. . . .it was necessary that the great rights of human nature should be secure from the encroachments of the legislature, . . ." [OSA, p.436]

Patrick Henry followed Mason in discussion of Virginia's Bill of Rights, indicating the general need for the well regulated militia related protections to be added in a Federal bill of rights:

"You have a bill of rights to defend you against the state government, . . . and yet you have none against Congress," [OSA, pp.437-438] 

The reason this Revolutionary Era language was brought up in Virginia's 1788 Ratifying Convention was because Mason and Henry were attempting to get the Virginia State Declaration of Rights adopted by the Convention as a proposal for a U.S. Bill of Rights. They succeeded, and that is why Virginia's Ratifying Convention adopted a Bill of Rights containing an exact quote of the state's own 1776 well regulated militia clause.

The June 27, 1788 Virginia State Ratifying Convention proposed Bill of Rights, written by Mason and introduced by Henry, began:

"That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following:-" [OSA, p.457]

Article 17 of the Virginia Ratifying Convention Bill of Rights declared:

"17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state;" [OSA, p.459]

Thus, Virginia's "well regulated militia" of the people language was part of the "essential and unalienable rights of the people" according to the delegates of Virginia's Ratifying Convention. And those who wrote and promoted it understood it as a limit on the state government that was now being added as a limit on the new proposed Federal Government under the U.S. Constitution. Virginia's Bill of Rights proposal and its Second Amendment language became the model for the U.S. Bill of Rights because several other state ratifying conventions essentially copied it.

North Carolina adopted all of Virginia's proposals verbatim on August 1, 1788 when it refused to ratify the Constitution until the proposals were presented to Congress and a new Federal constitutional convention. [OSA, p.505] Thus, two state ratifying convention proposals had exactly the same two-clause Second Amendment predecessor, and these included an exact quote of Virginia's 1776 language.

The New York Ratifying Convention, which had ratified somewhat earlier on July 26, 1788, rather than proposing a bill of rights for later adoption, included an entire Declaration of Rights within its Ratification Document, much of it virtually copied from the Virginia Ratifying Convention proposed Bill of Rights. New York's Second Amendment predecessor stated:

"That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state;" [emphasis original, OSA, p.481]

The New York delegates of the people ratified the U.S. Constitution "Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and the the explanations aforesaid are consistent with the said Constitution, . . ." [OSA, p.483]

Following New York's lead, Rhode Island later adopted both of the provisions quoted directly above within its own Ratification Declaration of Rights prior to ratification of the U.S. Bill of Rights provisions. [OSA, p.735]

Thus, there were four state ratifying conventions that defined “a well-regulated militia” as either “composed of” or “including” "the body of the people". The reference to "militia" in common period usage standing all by itself is a reference to the people - “the people at large”, “the whole nation” - as documented above. The “well regulated” reference simply means that the people are capable of effective defense. This means the people possess arms and know how to use them, and the government would be violating the Constitution by attempting to disarm them since this was clearly intended as a limit on government power to assure a defensively effective population. Also, this language, in conjunction with George Mason's addition of Pennsylvania style "that the people have a right to keep and bear arms" language and James Madison's restrictive “shall not be infringed” language makes the Second Amendment perfectly clear.

Going back to the original Virginia 1776 Section 13 well regulated militia Bill of Rights provision, which the above state ratifying provisions are directly related to, note that George Mason used virtually the same language in relation to an all voluntary self-embodying defensive association in Fairfax County formed in late 1774 and early 1775. This language was used because the people were forced to rely on their own personally held arms and ammunition for defense. British government officials not only failed to assure the militia were armed or trained, they did exactly the opposite, stopping all importation of arms and gunpowder and seizing any publicly stored arms and ammunition to further assure control by force over the population. Americans assured that disarming of the population could never occur under their newly formed state and Federal governments, that the people would be in control, and that is the reason for the Second Amendment and its related period state bill of rights provisions.
[See The Founders' View Of The Right To Bear Arms: A Definitive History Of The Second Amendment, pp.36,45-46,48-49, 63-65 for relevant history and early Mason Triad development]

The Second Amendment is not the ambiguous and strangely worded sentence that those disliking its provisions insist cannot be understood. To grasp its meaning one only has to look at common period usage and the full context of its inclusion in so many American bills of rights. It is a Bill of Rights provision limiting Federal Government power developed directly from state bill of rights provisions limiting state power. Interpreting it in any other way involves ignoring the period usage and historical evidence, and results in any contrary interpretation being in direct conflict with documented American historical reality.

Have a Thoughtful Independence Day!

Friday, July 1, 2016

Bill O'Reilly Is Killing The Second Amendment

Bill O'Reilly's Historical Error On The Second Amendment

This blog normally examines and documents historical errors of dissenting Supreme Court justices and professional historians who file briefs supporting gun control in Supreme Court cases such as Heller and McDonald. It does not normally address erroneous current comments on television shows relating to the Second Amendment because time is precious and one could spend their entire life trying to correct all the erroneous statements about the Second Amendment that appear regularly. However, since the Second Amendment is under continuing and heavy attack at the present time, and Bill O'Reilly has a connection to American history, this post is an exception. Bill O'Reilly's background includes teaching history, and he has an extensive series of history books, the Killing series, which hopefully are based on historical reality rather than just his personal opinions. His books are widely read and likely accepted as historically accurate, and his large number of regular viewers are apt to accept his personal views on other historical subjects as if actually based upon some documented historical evidence he has researched.

On the June 14, 2016 O'Reilly Factor, Bill had this to say regarding the Second Amendment in his Talking Points, entitled Acceptable Losses:

"the Second Amendment clearly states the government has a right to regulate militias, made up of individuals."

In reality, the Second Amendment states no such thing. Instead, it clearly states:

"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."

[Taken from Thomas Jefferson's authenticated official imprint of the amendments proposed by Congress and ratified by the states reprinted in The Founders' View Of The Right To Bear Arms, p.221]

Bill O'Reilly has the Second Amendment, a U.S Bill of Rights provision written in 1789, confused with Article 1, Section 8 powers relating to the militia written in 1787. This Bill of Rights provision was intended to limit the powers of the Federal Government, and both of its clauses were based directly on existing state declaration of rights language intended to limit state governments. The Second Amendment is like the other enumerated rights of the first eight amendments to the Constitution that were reenactments in the U.S. Bill of Rights as limits on power at the Federal level based directly on limits upon state governments taken from state bills of rights. There is nothing stated in the Second Amendment giving any government power to regulate any thing.

Mr. O'Reilly, or one of his producers, should spend a little time studying the actual historical evidence regarding Second Amendment development and purpose rather than relying solely on the host's personal opinions because the historical evidence regarding this matter is extensive, conclusive, easily available, and it directly contradicts what Bill O'Reilly believes and states on the show. A good start would be to examine The American Revolutionary Era Origin Of The Second Amendment's Clauses, a short, fully documented historical article from the 2011 Journal On Firearms And Public Policy that can be found online by clicking the above link.

Or, they could take a look at the book cited above, The Founders' View Of The Right To Bear Arms: A Definitive History Of The Second Amendment, which traces and fully documents the Second Amendment's predecessor language, authors, and historical development back through the Ratification Era into the Revolutionary Era and beyond into Colonial Period usage of terms.

Hopefully, at some time in the relatively near future, Mr. O'Reilly will correct the misinformation he broadcast on The O'Reilly Factor on June 14, 2016 regarding what he believes the Second Amendment "clearly states".


Friday, November 14, 2014

Notice: New Pages


There are now two new pages linked near the top of this page, Site Map and Post Index. These pages, along with Fisking Index Page, allow readers ease of access to the extensive historical information about the Second Amendment available in the various posts at this blog. Site Map describes each of the four site pages, and Post Index provides direct links to historically significant posts published in the past.
[Updated February 20, 2015]

Wednesday, October 29, 2014

New Fisking Index Page


NOTICE

A new link, Fisking Index Page, is now located at the top of this home page. It provides easy access to posts for each Second Amendment historical analysis published at On Second Opinion Blog over the last five and a half years. Readers interested in a particular series can now use the Fisking Index to go through the entire set of posts documenting the Second Amendment related historical errors in a particular analyzed work with ease. All of the analysis parts for the professional historians' Heller Supreme Court brief, the two professional historian briefs in the McDonald case, and Supreme Court Justice Stevens' Heller dissent can be directly accessed by simply opening a new tab using the list of linked parts provided in the index.

Enjoy and let others know about this readily available information.

Sunday, September 21, 2014

29th Annual Gun Rights Policy Conference Next Weekend in Chicago

The 2014 Gun Right Policy Conference, sponsored by the Second Amendment Foundation and the Citizens Committee for the Right to Keep and Bear Arms, will be held on September 26, 27 and 28 at the Hyatt Regency O'Hare Airport Hotel. Information is available at the Second Amendment Foundation's website.

I will be attending this year and hope to meet any of this blog's followers or others interested in Second Amendment history who happen to be there.

Wednesday, September 3, 2014

Notice: The SecondAmendmentInfo.com Webpage Is Back Online

   SecondAmendmentInfo.com is back online. All links at On Second Opinion Blog to information on my webpage should now be functional.
   I would like to thank Dan Joseph not only for assistance in getting the webpage back up and running quickly, but also for making it possible for my website to be readily available online.

Wednesday, August 27, 2014

Notice: The SecondAmendmentInfo.com Webpage Is Down


Notice for those interested in Founding Era Second Amendment information - my webpage, secondamendmentinfo.com is down.

Many of the documentation links at On Second Opinion Blog are to sources and articles at my webpage. For example, links to The Journal on Firearms and Public Policy article, The Revolutionary Era Origin of the Second Amendment's Clauses, no longer work. Also links to my Heller case analyses of gun control advocates' historical arguments in friend of the court briefs no longer link.

I will be attempting to get a new host for the website soon. Until then, some of the now offline writings may appear at this blog in serialized form as blog posts.

Tuesday, June 3, 2014

The History of the Second Amendment

Second Amendment History

This most interesting subject is the focus of a program at the National Constitution Center being held tomorrow, June 4, 2014, according to a post at Alan Gura's new blog, Reality-Based Litigation. He is one of three participants in the program.

Alan was the lead attorney in the U.S. Supreme Courts' 2008 District of Columbia vs Heller case. His argument based on historical facts that the Second Amendment was understood as a protection for individual rights prevailed in that case. Reality based litigation and facts go well together.

Two books by the author of On Second Opinion Blog are considered by Alan Gura as "the authoritative books" on the history of the Second Amendment. To see which two books, click here for Alan Gura's History of the Second Amendment program announcement.


[Hat tip to David Hardy's Of Arms And The Law Blog regarding Alan Gura's new blog.]

Thursday, May 1, 2014

District of Columbia vs Heller Dissent - Part 6


Justice Stevens' Mangled Beyond Recognition American History
     Not only does Justice Stevens erroneously rely on well regulated militia language provisions as if they back up his Heller dissent argument that the Second Amendment protects state power over the militia, (see Parts 1, 2, 3, 4 and 5) he also relies on other founding era provisions that were always linked with Second Amendment predecessors. The seminal example of such linkage is Article 13 of Virginia's 1776 Declaration of Rights, the first clause of which was examined in Part 3:
"That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power." [The Origin of the Second Amendment, pp.748-749]
     Article 13, written by George Mason, consists of three distinct parts. The first is a Second Amendment predecessor protecting an armed populace capable of effective defense, the second part protecting against peacetime standing armies that endanger liberty, and the third part declaring government raised forces (the military) subordinate to the "civil power".
     Justice Stevens reliance on the second and third parts of Virginia's Article 13 triad of protections (Mason Triad) to support his "state militias" protecting Second Amendment intent argument is just as illogical as his reliance on its well regulated militia clause due to direct conflict with the understanding of the provisions' framers. They used the language of all three Mason Triad parts to limit the state government. As documented in Part 3, George Mason and Patrick Henry, respectively, when speaking on June 16, 1788 in the Virginia Ratifying Convention, described Article 13 of Virginia's 1776 Declaration of Rights as a provision "which the people, by their bill of rights, declared to be paramount to the power of the legislature", the intent of which was to defend "against the state government". [The Origin of the Second Amendment, pp.436, 437]
     Heller dissent usage demonstrates that Justice Stevens is oblivious to the fact that all three parts of Virginia's Mason Triad are intended as limits on state power, thus, directly conflicting with his state power protecting argument. The Heller dissent not only relies on Virginia's Article 13 Mason Triad as if it supports Justice Stevens' argument, it also relies on Mason Triads with leading well regulated militia provisions adopted by three other states, Delaware, Maryland, and New Hampshire. The full Mason Triads of all four states are quoted in footnote 5 starting on page 5 of the Heller dissent.
     Each of these subsequently adopted Mason Triads varied the language of Mason's Virginia original somewhat. They all dropped the duplicative description of the militia (the body of the people), added an exception of legislative authorization to the second part, and added "at all times" to the limitations on the state in the final subordination of the government's military forces part.
     As an example, Delaware's 1776 Mason Triad, the first after Virginia's to adopt well regulated militia language, stated:
"Sect. 18. That a well regulated militia is the proper, natural and safe defence of a free government.
Sect. 19. That standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the Legislature.
Sect. 20. That in all cases and at all times the military ought to be under strict subordination to and governed by the civil power."

[The Origin of the Second Amendment, p.752]
     Justice Stevens' reliance on these other well regulated militia protecting Mason Triads, just as Virginia's original, is entirely illogical because they were all intended and understood as limits on their state governments, not as descriptions of, guarantees to, or protections for state power.
     All of the eight early states that adopted declarations of rights also indicated they were either a part of the state constitution or a limitation on legislative power, excepting only Virginia's, the first formed. Some of the other states specified both points within their constitutions. In Virginia's case, the period framers later indicated that its declaration of rights was part of the constitution and understood as a limit on state power.

     New Hampshire's "Bill of Rights" was "Part I" of its constitution, and "The Form of Government" was "Part II". State constitutions are binding on state governments just as they are upon the people who authorize them. New Hampshire's constitution additionally specified a limitation on the state government relative to rights and privileges contained within it, a provision very similar to the Delaware provision quoted directly below. [F. N. Thorpe, Federal and State Constitutions, Vol. 6, pp.2453, 2458, 2469]
     Delaware's 1776 State Constitution, Article 25, specifically limited the legislature relative to the declaration of rights as follows:
"The common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution, and the declaration of rights, &c., agreed to by this convention."
[Thorpe, Vol. 1, pp.566-567]
     Maryland's Declaration of Rights, Article XLII, limited the legislative branch as follows:
"That this Declaration of Rights, or the Form of Government, to be established by this Convention, or any part or either of them, ought not to be altered, changed or abolished, by the Legislature of this State, but in such manner as this Convention shall prescribe and direct." [The Origin of the Second Amendment, p.761]
     The above sources indicate that all four of the Mason Triads quoted in note 5 of the Heller dissent were intended as limitations on their respective state governments, not as descriptions of state power over military matters. They were constitutional level restraints on state power that directly contradict the use made of them by Justice Stevens.
     Once again, Justice Stevens is documented using period sources as support for his Heller dissent argument that, to the contrary, directly refute his interpretation of the Second Amendment and its immediate predecessors. His constant reliance on period sources that undermine the Heller dissent argument is an intellectual embarrassment of the first order. All of the period evidence that Justice Stevens quotes in Heller, when examined carefully and compared to the understanding of the founders, disproves his argument the Second Amendment was intended to protect state militia power because he completely ignores American historical reality and the founders' period usage.
     The fact is that each of the eight state bills of rights developed during the Revolutionary Era had its own Mason Triad protecting the same three concepts as Virginia's Article 13, and all were intended to protect against violation by state government. Each included a leading Second Amendment predecessor, a limitation on peacetime standing armies that endanger liberty, and ended with a provision subordinating government raised force to the civil power.
[Mason Triads were first identified in The Founders' View of the Right to Bear Arms. They are available online in appendices of The American Revolutionary Era Origin of the Second Amendment's Clauses, which was published in the 2011 issue of The Journal on Firearms and Public Policy.]
     Mason Triads, with their leading state bill of rights Second Amendment predecessors, limited state governments at the constitutional level. They protected the people by assuring an armed population capable of defense, checked peacetime standing armies, and guaranteed any forces raised by state governments were, both in law and in reality, subordinate to the the very people who authorized the government through their state constitution.

[In the next part, the four other Revolutionary Era Mason Triads will be examined, further demonstrating Justice Stevens Heller dissent to be mangled beyond recognition American History.]

Monday, April 14, 2014

District of Columbia vs Heller Dissent - Part 5

Justice Stevens' Crashed & Burned American History
      In Parts 1 through 4 of this series, Justice Stevens' erroneous view of well regulated militia language in Founding Era American bill of rights context is documented. The following Heller dissent description and quote of Connecticut's 1782 "Acts and Laws Regulating the Militia" demonstrate Justice Stevens' view of well regulated militia language in early state law context to be a misinterpretation of common Revolutionary Era terminology, contradicting the dissent "state militias" argument yet again.
"The language of the [Second] Amendment's preamble also closely tracks the language of a number of contemporaneous state militia statutes, many of which began with nearly identical statements. . . .
"Whereas the Defence and Security of all free States depends (under God) upon the Exertions of a well regulated Militia, and the Laws heretofore enacted have proved inadequate to the End designed.""
[Heller Dissent, note 6, pp.6-7]
     Since the law mentions "Laws heretofore enacted" regarding "a well regulated Militia," Connecticut clearly had a state militia institution, or state regulated militia, prior to the passage of this 1782 law. However, the prior laws did not result in "a well regulated Militia" because those laws "proved inadequate to the End designed". The end designed was a well regulated militia for defense. Well regulated militia is used in Connecticut's law as a performance dependent description of the militia related to their effectiveness or capability for defense. It is not used as a description of state government authority to institute or regulate the militia, which is Justice Stevens' view of the language.
     If, as Justice Stevens believes, well regulated militia in this law describes a state regulated militia or state militia institution, then the statement in the Connecticut law makes no sense whatsoever. How can there be previous laws establishing and regulating the militia by the state and there not be a state regulated militia or state militia, if that is what well regulated militia signifies? Any establishment or regulation of the militia by state law results in a state militia. Justice Stevens quotes this well regulated militia example to link the period language to his "state militias" view of its meaning. The dissent use of this historical example indicates Justice Stevens fundamentally misunderstands common founding era usage of militia and well regulated militia terminology. Examination of other period sources further clarify this fact.
     George Mason, author of the Second Amendment's 1776 and 1788 predecessors, described the militia in the Virginia Ratifying Convention as follows:
"I ask, Who are the militia. They consist now of the whole people, except a few public officers." [The Origin of the Second Amendment, p.430]
     In The Federalist #29 (first published as #35 in early 1788), Alexander Hamilton suggested what course of action the Federal Government should take under its new militia powers after ratification of the Constitution. Hamilton provides three different descriptions of the militia, all of which represent typical period usage.
"the great body of the yeomanry and of the other classes of the citizens"
"the people at large"
"the whole nation"

[The Origin of the Second Amendment, pp.197-198]
     The above examples indicate that the founders often equated the militia and the people. The following excerpt from the same number of The Federalist clearly combines this period understanding with well regulated militia language used as a typical period performance standard describing the capability of the militia for defense.

"To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions as often as might be necessary, to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss."
[The Origin of the Second Amendment, p.197]
     Hamilton uses well regulated militia as a description of the militia regarding their "degree of perfection" in military exercises relating to defense, a performance standard. This is the same general sense it is used in the Connecticut militia law quoted by Justice Stevens. A performance standard understanding of well regulated militia language in the Connecticut militia law makes sense because "well regulated" relates to the effectiveness of the militia, an inherent character of the militia based on their capability, not to state government authority to establish or regulate the militia.
     Even in state militia law context, where the state government was understood to have regulatory authority over the militia, well regulated militia language was not used to describe that fact. Rather, it was used to describe the militia themselves based on their effectiveness for the "End designed", which was defense.
    
Regardless of context - whether Federal Bill of Rights related (see Parts 1 and 2), Revolutionary Era state bill of rights related (see Parts 3 and 4), state militia law related, or Federal militia law discussion related (above) - the period sources examined indicate that well regulated militia language was not used to signify state or government regulation of the militia. The only proofs offered by Justice Stevens in the Heller dissent that his view of well regulated militia language is consistent with that of the founders' are his own assertions to that effect. Overt Heller dissent reliance on any and every period well regulated militia reference as support for its argument that the Second Amendment's first clause was intended to protect "state militias" is contradicted by the period evidence. The founders understood the militia to be the people and "well regulated" to simply mean the militia were capable of effective defense.
     Every period source with well regulated militia language quoted in the Heller dissent by Justice Stevens actually contradicts his interpretation of the Second Amendment's first clause because he employs the language contrary to the founders' understanding of it.


[In Part 6, the state bill of rights provisions quoted in the Heller dissent will be examined to further document Justice Stevens' crashed and burned American history.]

Friday, March 7, 2014

The District of Columbia vs Heller Dissent - Part 4

Justice Stevens' Completely Off-The-Rails American History
 Updated October 20, 2016

      As documented in Part 3, Justice Stevens' Heller dissent is in direct conflict with the view of George Mason and Patrick Henry, who developed and adopted the Article 13 well regulated militia clause of Virginia's 1776 Declaration of Rights. Related George Mason writings leading up to Virginia's Declaration also indicate that Justice Stevens is entirely wrong about the intent of the well regulated militia language later incorporated into the Second Amendment. The historical background of the period and context of Mason's writings further confirm the conflict between the founders' view and the Heller dissent historical argument.
      The Parliament of Great Britain had declared a right to bind Americans in all cases whatsoever in 1768. In May of 1774, two years prior to adoption of Virginia's Declaration of Rights, Britain used military force to close the port of Boston as punishment for the Boston Tea Party and later revoke the Massachusetts Charter, resulting in the colony's entire civil society being made subservient to military rule under British government officials. By mid1774, the people in all of the American colonies had to decide whether to accept such extravagant claims of power and related government military action as legitimate, or if not, what to do about it.
[See The Founders' View of the Right to Bear Arms, pp.27-50 for history and citations not specified in this Part.]
      George Mason, along with Patrick Henry, George Washington and other Virginia patriots met at Mount Vernon on August 30, 1774, to address these issues. As a result, the attendees encouraged voluntary self-embodying defensive associations at the local level in their home counties. Mason promoted the Fairfax Independent Company of Volunteers, and Henry was involved with the Hanover Volunteers. Less than a month after the Mount Vernon meeting, the Fairfax Volunteers associated for defense:
"At a Meeting of a Number of Gentlemen & Freeholders of Fairfax County in the Colony of Virginia, on Wednesday the 21st: Day of September 1774, George Mason Esqr. in the Chair, the following Association was Formed & entered into.
. . . we the Subscribers . . . being sensible of the Expediency of putting the Militia of this Colony upon a more respectable Footing, & hoping to excite others by our Example, have voluntarily freely & cordially entered into the following Association . . .
That we will form ourselves into a Company, not exceeding one hundred Men, by the Name of The Fairfax independent Company of Voluntiers, making Choice of our own Officers; . . . That we will meet at such Times & Places in this County as our said Officers . . . shall appoint & direct, for the Purpose of learning & practicing the military Exercise & Discipline . . . furnished with a good Fire-lock & Bayonet, Sling Cartouch-Box, and Tomahawk. And that we will, each of us, constantly keep by us a Stock of six pounds of Gunpowder, twenty pounds of Lead, and fifty Gun-flints, at the least.”
[Mason Papers I, pp.210-211]
      Within four months of The Fairfax Independent Company voluntarily associating for defense against government tyranny, George Washington wrote there were independent companies of militia in many counties of Virginia.
      The Fairfax County Committee of Safety, of which Mason and Washington were members, passed a resolution in mid-January recommending the male inhabitants age 16 to 50 self-embody as local militia companies. This resolution described the associators as a well regulated militia, terminology that was copied from a Maryland resolution passed the previous month recommending the same action to Maryland's inhabitants. By early February, Mason had incorporated the well regulated militia language into his Fairfax County Militia Plan:
"Threatened with the Destruction of our antient Laws & Liberty, and the Loss of all that is dear to British Subjects & Freemen . . . firmly determined, at the hazard of our Lives, to transmit to our Children & Posterity those sacred Rights to which ourselves were born; and thoroughly convinced that a well regulated Militia, composed of the Gentlemen, Freeholders, and other Freemen, is the natural Strength and only safe & stable security of a free Government . . .WE the Subscribers, Inhabitants of Fairfax County, have freely & voluntarily agreed, & hereby do agree & most solemnly promise, to enroll & embody ourselves into a Militia for this Country, intended to consist of all the able-bodied Freemen from eighteen to fifty Years of Age, under Officers of their own Choice; . . .And we do Each of us, for ourselves respectively, promise and engage to keep a good Fire-lock in proper Order, & to furnish Ourselves as soon as possible with, & always keep by us, one Pound of Gunpowder, four Pounds of Lead, one Dozen Gun-Flints, & a pair of Bullet-Moulds, with a Cartouch Box, or powder-horn, and Bag for Balls. . . . And that we will always hold ourselves in Readiness, in Case of Necessity, Hostile-Invasion, or real Danger, to defend & preserve to the utmost of our Power, our Religion, the Laws of our Country, & the just Rights & Privileges of our fellow-Subjects, our Posterity, & ourselves, upon the Principles of the English Constitution."
[Mason Papers I, pp.215-216]
      Self-embodying voluntary defensive associations, described in well regulated militia terms, began to spread across the American colonial landscape during this period. These activities originated well before any hostilities of the American Revolution and over a year prior to Mason's inclusion of well regulated militia language in Article 13 of America's first state declaration of rights.
      Mason and other period Americans used well regulated militia language prior to the Revolutionary War to describe the people taking up their own arms and self-embodying for defense against government troops and officials who were destroying civil liberty and endangering free government. Mason's later inclusion of this commonly used period language in Virginia's Declaration of Rights as a limit on state power indicates that Article 13 was understood as assuring the right of the inhabitants to self-embody for defense against tyranny. The essential prerequisite of the people taking up their own arms to self embody for defense against government misuse of force, and inherent in the very concept of a well regulated militia, is the people's possession and use of their own arms, which was understood as protected by Article 13.
      Justice Stevens' Heller dissent argument is that the well regulated militia language of Virginia's Article 13 related to the state government's authority and power over its militia institution. That view directly conflicts with the author of the provision, George Mason, and the patriots who adopted it. The founders' view was exactly the opposite, that the Article 13 well regulated militia language was a provision “paramount to the power of the legislature” protecting a self-embodying militia of the people “against the state government”, according to George Mason and Patrick Henry, respectively, as documented above and in Part 3 below.
[In Part 5, Justice Steven's lack of understanding regarding Founding Era militia usage will further demonstrate the Heller dissent historical arguments to be completely off the rails American history.]

Saturday, March 1, 2014

The District of Columbia vs Heller Dissent - Part 3

Justice Stevens' Off Track
American History 
     In addition to the sources presented in Parts 1 and 2 of this series, there are others from the 1788 Virginia Ratifying Convention proving Justice Stevens' Heller dissent to be in error regarding Second Amendment intent. The founders who developed and adopted the Amendment's immediate predecessor viewed it in a completely different light than Justice Stevens, a fact that is evident from their bill of rights discussion within the convention.
     On June 16, 1788, Patrick Henry and George Mason both gave speeches regarding the need for a federal bill of rights. Henry set up their upcoming arguments by reading six specific provisions from Virginia's 1776 Declaration of Rights: 
"Mr. Henry moved to read from the 8th to the 13th article of the declaration of rights; which was done." 
[The Origin of the Second Amendment, p.434]
     Those specific articles of Virginia's state bill of rights included predecessors of protections later included in the First, Second, Fourth, Fifth, Sixth, Seventh, and Eighth Amendments to the U.S. Constitution. The well regulated militia language of Virginia's ratifying convention Article 17, which Justice Stevens erroneously conflated, was copied verbatim by George Mason from this 1776 Virginia Declaration of Rights Article 13 original: 
"13. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state;"
 [The Origin of the Second Amendment, p.434]
     Interestingly, both Patrick Henry and George Mason were members of the drafting committee in the Revolutionary Era convention that adopted this 1776 Virginia well regulated militia clause as part of America's first state bill of rights over a decade earlier. Mason was acknowledged as its author by the other delegates. In the modern dispute over meaning of well regulated militia clause language in American bills of rights, the comments of Mason and Henry are essential for determining period understanding because they originated the language in 1776 and utilized what they originated again later verbatim in 1788 as model U.S. Bill of Rights language. Their 1788 bill of rights comments directly contradict the Heller dissent Second Amendment intent argument.
     Mason spoke first on the bill of rights subject, explaining his understanding of Virginia's state bill of rights and the general purpose of the specific provisions Henry had read shortly before, which included the original well regulated militia clause: 
"there were certain great and important rights, which the people, by their bill of rights, declared to be paramount to the power of the legislature. . . .it was necessary that the great rights of human nature should be secure from the encroachments of the legislature, . . ."
[The Origin of the Second Amendment, p.436]
     Henry followed Mason indicating the general need for the protections he had read to be added in a federal a bill of rights: 
"You have a bill of rights to defend you against the state government, . . . and yet you have none against Congress," 
[The Origin of the Second Amendment, pp.437-438] 
     Patrick Henry and George Mason both understood Virginia's 1776 well regulated militia clause as a restriction on state government power. Prior to making the above statements in Virginia's ratifying convention, they had already inserted an exact quote of that clause into their Antifederalist committee model U.S. Bill of Rights, which was developed by assembling existing state bill of rights limitations on state government into a new Federal bill of rights of limitations on the power of the proposed Federal Government.
[See The Founders View of the Right to Bear Arms, pp.61-66 for more detailed history and citations regarding the origin of Virginia's well regulated militia clause.] 
     Contrary to the view of the framers who originated the well regulated militia clause in 1776, and who described and adopted it again in 1788, Justice Stevens, as documented in Part 1, conflated the clause's intent into protection for state authority. Early in his dissent, after quoting the Second Amendment's first clause, Justice Stevens directly quotes Virginia's 1776 language as evidence that the founders' intent matches his understanding of protecting “state militias”: 
"“A well regulated Militia, being necessary to the security of a free State”
The preamble . . . is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneously with the Declaration of Independence.5 Those state provisions highlight the importance members of the founding generation attached to the maintenance of state militias:"
[Heller dissent, pp.5-6] 
"5 The Virginia Declaration of Rights ¶ 13 (1776) provided: "That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State:"
[Heller dissent, p.5, note 5]
     The Heller dissent uses the 1776 Virginia Article 13 well regulated militia language to support its argument the Second Amendment's militia clause was intended to protect state power. The framers responsible for its development and inclusion in Virginia's 1776 Declaration of Rights described the purpose of Article 13 as exactly the opposite, a limit on state power. This is another clear example demonstrating the direct conflict between Justice Stevens' opinion, expressed in his Heller dissent, and the documented views of the “founding generation” he bends into alignment with his own beliefs.
     The framing founders responsible for the 1776 language understood it as a limit on state power protecting a militia composed of the people, or in other words, protecting an armed populace. These drafting founders used the 1776 language again in the 1788 immediate predecessor of the Second Amendment with the clear intention of limiting the Federal Government in the same way it limited the state government, by protecting a militia of the people. Justice Stevens is totally confused about the meaning of this language, and his Heller dissent arguments are not only factually unfounded, but directly contradicted by the period evidence.
[In Part 4, George Mason's use of well regulated militia language in Virginia prior to writing the concept into that state's bill of rights is examined and documented, further demonstrating the off-track nature of Justice Stevens' Heller dissent.]

Wednesday, February 26, 2014

The District of Columbia vs Heller Dissent - Part 2

Justice Stevens' Sidelined
American History 
[Updated May 26, 2015]
Part 1  documented Justice Stevens' Heller dissent Second Amendment intent argument is founded on a conflation error because it directly conflicts with the statements of George Mason, the Ratification Era framer of its two-clause language. The dissent also linked the intent of Mason's Virginia Ratifying Convention Second Amendment proposal to those of North Carolina and New York, extensions of the conflation error to those sources.
     The Second Amendment proposals of all three states were based on the original two-clause Second Amendment version in George Mason's U.S. Bill of Rights model. The Virginia convention's sole alteration of Mason's language was dropping the word “to” before “bear arms” in its first clause. [1] North Carolina adopted Virginia's proposals verbatim and refused to ratify the Constitution until they were added. [2]
1 [See Part 1 for Virginia's version and below for Mason's original.]
2 [The Origin of the Second Amendment, pp.503-506]
     New York's Second Amendment predecessor, found in its ratification declaration of rights, was very similar to the other two states. It was based directly on Mason's original model. This resulted from George Mason providing New York's Antifederalist leaders a complete copy of his model for the U.S. Bill of Rights developed early in the Virginia Ratifying Convention, which met from June 2 through June 27, 1788. 
     The documents addressed below consist of Mason's U.S. Bill of Rights model [3], a partially developed list of Mason's "other" amendments [4], and letters from Patrick Henry, William Grayson, and George Mason, Virginia Convention Antifederalist leaders, to John Lamb, Antifederalist leader in New York City. These sources independently confirm the conflation error Justice Stevens' Heller dissent is founded upon.
3 [The Origin of the Second Amendment, pp.388-390]
4 [Mason Papers, Vol. III, pp.1055-1057]
     John Lamb sent letters to Mason, Henry, and Grayson seeking cooperation on a bill of rights and other amendments to the U.S. Constitution between Antifederalists in the New York and Virginia conventions. These were delivered on June 7, 1788, and all three Virginians responded affirmatively to Lamb on June 9. Mason, chairman of the amendments committee, included the complete model Bill of Rights and partial list of the amendments then under development with his letter. These letters and documents were transmitted to Lamb by Eleazer Oswald, the same special courier Lamb employed to hand deliver his requests regarding cooperation to the Virginians.
[For historical facts not specifically cited in this part, see the history and citations regarding Virginia-New York Ratifying Convention amendment cooperation found in The Founders' View of the Right to Bear Arms, pp.131-147]
     Patrick Henry's letter described the documents sent to Lamb as follows: 
"We have concluded to send you by Colo. Oswald a copy of the Bill of Rights & of the particular Amendments we intend to propose in our Convention". 
[Mason Papers, Vol. III, p.1071 note]
     The Bill of Rights was finalized and consisted entirely of provisions taken from existing state declarations of rights. The particular amendments list was still under development and related to alterations of specific parts of the proposed U.S. Constitution.
     William Grayson emphasized the incomplete nature of the particular amendments list:
"some of our proposed amendments are finished in the Committee; the others will be forwarded as soon as agreed on". 
[Mason Papers, Vol. III, p.1071 note]
     The particular or "other" amendments list sent to Lamb consisted of thirteen unnumbered provisions, five of which were not even included in the final twenty article version Patrick Henry introduced in Virginia on June 24. The amendments sent on June 9 were very much in a developmental state because analyzing, discussing and agreeing upon possible amendments to particular Constitutional provisions took considerable time and continued throughout Virginia's month long convention.
     That the Bill of Rights was completed very early in Virginia's convention, probably the first day or two, is not surprising because Mason himself had described the speed with which one could be developed the previous year in the Federal Convention:
He wished the plan had been prefaced with a bill of rights, and would second a motion, if made for the purpose. It would give great quiet to the people, and, with the aid of the state declarations, a bill of rights might be prepared in a few hours". 
[The Origin of the Second Amendment, p.12]
     Mason's 1788 Bill of Rights sent to Lamb fit this description exactly as it was essentially a copy of the 1776 Virginia Declaration of Rights with some added provisions from other state declarations.
     The Bill of Rights model's original two-clause Second Amendment predecessor sent to John Lamb on June 9 read: 
17. That the People have a Right to keep & to bear Arms; that a well regulated Militia, composed of the Body of the People, trained to Arms, is the proper natural and safe Defence of a free State;” 
[The Origin of the Second Amendment, p.390]
     Mason's June 9 letter to Lamb mentioned several parts of the Constitution to be addressed by his amendments committee in the future. This information, just as that in Part 1, establishes the direct conflict between the Founders' understanding and the Heller dissent argument regarding Second Amendment intent due to conflation.
"The Judiciary, the exclusive Legislative Power over the ten Miles Square, and the Militia, are Subjects to which our Attention will next be turned, and we shall communicate the Result of our Deliberations with all possible Dispatch." 
[Mason Papers III, p.1058]
     Mason and the amendments committee members understood they had addressed no amendments of the Constitution's militia powers as of June 9, and that none were included among the documents sent to John Lamb. The fact that the original two-clause Second Amendment predecessor was sent to Lamb as part of the model Bill of Rights on that date clearly indicates it was not understood by its framers as relating to amending the militia powers, which is the erroneous view advanced in Justice Stevens' dissent. These facts document and further exemplify the direct conflict between the founders' view of the Second Amendment and that advanced by the dissenting Heller justices.
     The period evidence presented here is entirely consistent with that in Part 1, and it independently verifies the conflation error the Heller dissent is based upon. As a result of this erroneous historical foundation, the dissenting Heller justices treat all period historical sources with well regulated militia language as support for their argument.
     Every Revolutionary and Ratification Era bill of rights predecessor of the Second Amendment with well regulated militia language is presented somewhere in the Heller dissent as supporting its opinion of intent. Since the dissent view of period well regulated militia language is based on erroneous conflation, use of closely related historical examples results in repeated conflation errors. The only evidence offered to verify the dissenting justices assertions regarding intent are appeals to their own authority, another type of fallacious argument. The Heller dissent view of Second Amendment intent is an interwoven series of fallacious appeals to its own authority based on error of fact due to conflation. The end result is a circular argument in which the very language at the heart of Second Amendment dispute, historical well regulated militia sources, are repeatedly offered as proof the dissent is factually correct.
     The Second Amendment intent argument in Justice Stevens' Heller dissent is entirely undermined by relevant period historical sources, which demonstrate it is founded on factual error.
[In Part 3, the understanding of Second Amendment framer George Mason regarding well regulated militia language will be examined, further documenting the sidelined American history nature of Justice Stevens' Heller dissent.]