Root Causes of Never-ending Second Amendment Dispute - Part 2

Ignored Facts, Unfounded Assertions, and the Professional Historians' Heller Amicus Brief

The next assertion to fact check within the professional historians' Heller amicus is in the sentence immediately following assertion #1. It is another claim regarding the state declarations of rights, about which the historians assert:

Assertion #2
“These declarations operated not as legally binding commands but rather as statements of republican principles or common law protections.” [p.10]

Fact checking of assertion #2
Statements of Founders who were responsible for writing and approving the very first American state declaration of rights directly contradict this assertion. Members of the committee assigned to draw up the 1776 Virginia Declaration of Rights, including George Mason, Edmund Randolph, and James Madison, later described the purpose of that document as intended to limit the government's power. Also, the constitutions of at least three states indicated that their declarations of rights ought not to be violated on any pretense whatsoever.

First, George Mason, author of the 1776 Virginia Declaration of Rights, stated the following during the Virginia Ratifying Convention in 1788: "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." [OSA p.436] Mason's specific talking points under discussion at that moment were sections 8 through 13 of Virginia's Declaration of Rights, which included the first state bill of rights well regulated militia language and predecessor of the Second Amendment. [FVRBA p.140]

Next, Edmund Randolph, in his Essay about revolutionary Virginia, wrote that the first purpose for the Virginia Bill of Rights was that the legislature should not in their acts violate any of those canons it contained. [FVRBA p.75]

Third, James Madison, referring to all of the American state bills of rights during his speech introducing the proposals that became the U.S. Bill of Rights into Congress, made this statement : "The people of many States have thought it necessary to raise barriers against power in all forms and departments of Government, and I am inclined to believe, if once bills of rights are established in all the States as well as the federal constitution, that although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency." [OSA p.657]

Additionally, each of the three state constitutions that made their state declarations of rights part of the constitution, as noted in the prior post, also indicated that those declarations of rights ought never to be violated on any pretense whatsoever. The relevant section of the 1776 Constitution of Pennsylvania stated: "Sect. 46. The declaration of rights is hereby declared to be part of the constitution of this commonwealth, and ought never to be violated on any pretence whatever." [OSA p.755] The virtually identical provision from North Carolina's 1776 Constitution stated: "XLIV. That the Declaration of Rights is hereby declared to be part of the Constitution of this State, and ought never to be violated, on any pretence whatsoever." [OSA p.763] The related provision from Vermont's 1777 Constitution stated: "Section XLIII. The declaration of rights is hereby declared to be a part of the Constitution of this State, and ought never to be violated, on any pretence whatsoever." [OSA p.768]

Conclusion - Assertion #2 is erroneous
The assertion in the Heller amicus from fifteen professional academic historians that the state declarations of rights were not legally binding on the state governments is directly contradicted by the above stated views of three prominent Founders, all of whom were members of the committee that drew up the first American state declaration of rights, and two of whom were later actually responsible for the development of the U.S. Bill of Rights (including the specific two clause structure and language of the Second Amendment). The historians are also contradicted by the specific provisions in the constitutions of Pennsylvania, North Carolina, and Vermont that not only made their declarations of rights part of their constitutions in order to protect them from legislative tampering, but further specified they ought never to be violated on any pretense.

That not one of the fifteen professional academic historian signers of the Heller brief was familiar with these statements from prominent Founders or the provisions of the existing state constitutions that directly contradict their assertion once again emphasizes a lack of familiarity with essential relevant historical information on their part. Of more significance, that these historians make an assertion directly contradicted in Madison's speech to Congress introducing the U.S. Bill of Rights proposals in a brief explicitly relating to the disputed history and intent of a provision it contains is entirely unacceptable from any point of view.

Both erroneous assertions #2 and #1 indicate that the claims in the Heller amicus from fifteen professional academic historians cannot be relied upon as factual because they are unfamiliar with, have misinterpreted, or have ignored relevant period evidence that is essential for understanding Second Amendment history and meaning.