Ignored Facts, Unfounded Assertions, and the Professional Historians' Heller Amicus Brief
The Heller amicus brief supporting Washington DC filed with the U.S. Supreme Court by fifteen professional historians was the culmination of many years of research into American history. It obviously presented the very best historical arguments from those in the field supporting the city's position. However, the historians' brief included errors of fact, ignored directly contradictory information, and strayed far afield from the actual Bill of Rights history and context of the Second Amendment, and all of this in spite of the fact that fifteen academics were involved. In this and following posts, various errors and misleading assertions in the historians' Heller amicus brief will be examined. Each erroneous or misleading statement will be numbered and fact checked against period information with the error or misleading information documented.
Regarding the eight state declarations of rights formed during the American Revolution and extant at the time the Second Amendment was developed, the historians in their Heller amicus assert:
“In only two states (Pennsylvania in 1776, Massachusetts in1780) were they made part of the actual constitutions.” [pp.9-10]
Fact checking of assertion #1
There is no doubt that the two state declarations of rights specified by the historians were part of their state constitutions. What there is serious doubt about, however, and what is erroneous about the historans' assertion is that there were only two.
In the case of Pennsylvania, the Constitution of 1776 clearly stated, “Sect. 46. The declaration of rights is hereby declared to be a part of the constitution of this commonwealth” [OSA p.755] But these fifteen historians somehow missed the fact that two other states copied the above Pennsylvania Constitution language almost verbatim making their declarations of rights part of their constitutions also. North Carolina's 1776 Constitution stated, “XLIV. That the Declaration of Rights is hereby declared to be a part of the Constitution of this State” [OSA p.763] The other state to have identical language on this matter was Vermont. The Vermont Constitution of 1777 stated, “Section XLIII. The declaration of rights is hereby declared to be a part of the Constitution of this State” [OSA p.768] The fact that such obvious and easily accessed information was overlooked and an assertion made to the Supreme Court that, in effect, it did not exist does not bode well for the factual reliability of the professional historians' Heller amicus brief.
As for Massachusetts, directly after the PREAMBLE of the Massachusetts Constitution of 1780 came “PART THE FIRST”, the title of which was, “A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH OF MASSACHUSETTS”. [OSA p.770] This is obviously the first part of the constitution. Inexplicably however, not one of these fifteen professional historians noticed that New Hampshire's 1784 Constitution had exactly the same constitutional structure in this respect as that of its southern neighbor. The title of “PART I” of the New Hampshire Constitution was “THE BILL OF RIGHTS” [OSA p.775], indicating it was the first part of the constitution.
Conclusion - Assertion #1 is erroneous
The historians' assertion that only two of the eight existing Revolutionary Era state declarations of rights were part of their state constitutions was erroneous and misleading. At least five of the eight state declarations of rights were specifically, in the words of the state constitutions themselves, part of their state constitutions. An obvious error of this type from such a large assemblage of professional academic historians is unacceptable in an amicus brief filed with the U.S. Supreme Court. The nature of this error is not just an embarrassment for the historians. It brings into serious question the factual basis of the historians' Heller amicus brief supporting Washington DC's gun control laws because it indicates that these historians are not overly familiar with the relevant period sources their assertions relate to.