Commentary on Ignored Facts and the Historians' Heller Amicus Brief
[Updated September 26, 2011]
The treatment in the historians' Heller amicus brief of 'well regulated militia' provisions as variations of 'right to bear arms' provisions is perfectly legitimate. [p.11] What is not correct, however, is the professional historians' interpretation regarding the purpose of these provisions. The period evidence directly contradicts their assertion that these provisions do not relate to an individual right of private ownership and personal use of arms. These Second Amendment predecessors were understood as protection for a defensively effective armed civil population, a concept based upon individual rights. The best way to proceed in examining this point is to closely examine and compare the Second Amendment's earliest American bill of rights predecessor variants. These are the lead Mason Triad clauses from the Virginia and Pennsylvania Declarations of Rights that provide the most information about the fundamental concept they present.
Virginia's language from June of 1776 was:
"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.748]
Pennsylvania's language from August of 1776 was:
"That the people have a right to bear arms for the defence of themselves and the state" [OSA p.754]
Even though to modern readers these two provisions undoubtedly appear as quite different concepts at first glance, there are actually a great number of similarities between them. First, they both clearly relate to defense of the state. Second, they mention the people, indicating that it is the people's defense of the state that is being secured in some way by these state declaration of rights provisions. Third, both unquestionably relate to arms, and more specifically to arms that would be useful to the people for defense of the state.
In addition to these textually related similarities, there are a number of others of tremendous significance for a proper understanding. Both variations are state declaration of rights provisions intended to guard the people against abuse of power by the new government the people were forming. Thus, in spite of the historians' erroneous assertions to the contrary, they were understood as limits on the power of the state legislatures. Also, both provisions were leading Mason Triad clauses, an indication that they were actually related to civilian control over government raised military force. This concept is dependent on the civilian population possessing and knowing how to use their own arms. Finally, the history of these provisions directly contradicts the historians' interpretation and fully supports the period understanding of them as protections for individuals possessing and using their personally owned arms for organized defense.
It was demonstrated clearly in Posts 5 and 6 that Pennsylvania's colonial history directly contradicted the government controlled "military matters" interpretation the historians gave for Pennsylvania's “people have a right to bear arms” language. Examining Virginia's history to further clarify its declaration of rights language, we find that there is a very close parallel with that of Revolutionary era Pennsylvania. It turns out that Virginia's well regulated militia language was also related to the people associating for defense using their personally owned firearms and without government approval. In fact, Virginians began associating for defense against the British military threat approximately nine months prior to hostilities in Massachusetts. By January of 1775, defensive associations had been formed in many Virginia counties, including Fairfax and Hanover. These associations were styled independent militia companies, indicating they were independent of the government's authority.
George Mason, who later authored the very Virginia Declaration of Rights language under discussion here, used "well regulated militia" much earlier in January 1775 to describe the defensive association he had been helping to organize since September of 1774. That association involved the free men of Fairfax County taking up their own arms, forming companies, electing their own officers, and training themselves for effective mutual defense. These actions are exactly the same private arms rights based actions taken by the people of Pennsylvania in the face of British military tyranny. Pennsylvania's 'right to bear arms' and Virginia's 'well regulated militia' were, in fact, based upon the same fundamental right - the right of individuals to make use of their privately owned arms and to associate for effective mutual defense in the face of threatened government military tyranny. Both of these earliest American Second Amendment predecessor variants were a direct result of British government military action intended to force the people to comply with government edicts that were viewed as unconstitutional violations of Americans' rights.
But wait, there's more. Not only did Mason's well regulated militia usage originate in the much earlier defensive association related document, so also did his reference to its foundation in the free men being the "natural" strength of a "free" government. Even the concept Mason included in the second clause of Virginia's 1776 Mason Triad first appeared over a year earlier in the same Mason prepared document relating to the independent company or defensive association. It indicated that standing armies are ever dangerous to liberty. The development of well regulated militia language in relation to voluntary defensive associations in Virginia is explored in in Chapter 2 of The Founders' View of the Rights to Bear Arms.
Every reference in the four state declarations of rights that used Mason's 'well regulated militia' reference indicated that it was the "natural" defense of a “free” state or government (one did drop the free reference). Similarly, every one of the four bear arms provisions in the state declarations of rights indicated that "the people” have a right to bear arms for defense of the state. [For the state declarations of rights, see OSA pp.747-780 and FVRBA pp.61-77] Americans in Virginia and Pennsylvania relied upon their privately owned firearms and their ability to voluntarily associate for organized defense independent of government authority early in the American Revolution. It was these defensive activities of Virginians that led to its 'well regulated militia' reference, and it was Pennsylvanians' defensive activities that resulted in its 'people have a right to bear arms' language. Such defensive activities and the state declaration of rights provisions that resulted from them were fundamentally based upon the rights of private individuals to possess and personally use their own arms for defense.
The heart of the historians' overall argument is that the well regulated militia reference of the Second Amendment indicates it is all about government controlled militia and not related at all to private arms ownership or personal use of arms, such as in voluntary militia or defensive associations. Yet the period evidence indicates that the earliest American bill of rights related predecessors of its language, both the 'well regulated militia' AND 'the people have a right to bear arms' provisions of the state declarations of rights, were in fact based upon the use of private arms by their individual owners to cooperate for mutual defense of the state against military tyranny and without support in law. These provisions were intended to assure the future ability of the civil population to guard against and prevent tyranny from government raised military force by placing protection for an armed populace in constitutional level law as part of state declarations of rights. The above relevant period bill of rights related information directly contradicts the historians' Heller brief argument.