American Bills of Rights Committed to Oblivion in the Professional Historians' Heller Amicus Brief
Retrospective on State Bill of Rights Arguments
Up to this point a third of the way through their argument, the historians have at least been discussing Bill of Rights related history, even though they were persistently in error regarding the intent of the American declarations of rights and their arms related provisions. The actual purposes of these American provisions, to limit legislative power, was a major change to and improvement on the earlier English Bill of Rights, which only limited the Crown. However, that is not how the historians portrayed American bills of rights to the Supreme Court in their Heller amicus brief. On the contrary, the historians claimed the state bills of rights were just lists of principles or common law protections with no legally binding intent.
That not one of these fifteen historians, all of whom claim familiarity with early American history, was able to grasp this point and correct the errors found in their brief regarding something so fundamental and well documented is extremely disturbing. It is especially so since this very issue was a major point that James Madison elaborated on in his Bill of Rights amendments introduction speech to Congress in 1789. Madison considered comparisons of the English Bill of Rights and American bills of rights as "inapplicable" because "there is too great a difference in the case to warrant the comparison." In what specific respect were they so different that comparison was inapplicable? In the same respect that the historians' brief argued the exact opposite of Madison's clear understanding – whether they were intended to limit legislative power or not. The historians asserted they were not so intended, but Madison's stated view was that the state declarations of rights were intended to "raise barriers against power in all forms and Departments of Government..." [OSA p.657] This direct contradiction between the views of the Bill of Rights' author and the historians' personal opinions demonstrates to what little extent their legal brief can be relied on regarding the Second Amendment's history and intent.
The numerous erroneous statements relating to this particular matter in the first third of the historians' brief must be kept in mind because, after misstating the intent of the state declarations of rights and their arms related provisions, the historians bury them all in oblivion never to be mentioned again. For the following two-thirds of the historians' brief, it is as if these clear predecessors of the Second Amendment had never even existed.
Virginia's 1788 Ratifying Convention's proposed Bill of Rights, which James Madison promised to support in order to gain ratification by that state, contains virtually all of the 1776 Virginia Declaration of rights provisions, including its exact well regulated militia language. This salient fact relating directly to the Second Amendment's development is never mentioned by the historians. Neither are the essential facts that George Mason wrote both documents and originated the demand for a Federal bill of rights in the Federal Convention. [FVRBA pp.83, 134-147] For relevant historical information on the Bill of Rights nature and development of the Second Amendment, readers, including the Justices of the U.S. Supreme Court, were forced to go elsewhere because that essential historical information is absent from the historians' Heller brief. The entirety of the relationship between the existing American state declarations of rights arms provisions and the U.S. Bill of Rights' Second Amendment is found only in the historians' introductory summary argument of their brief and consists solely in use of the term “analogous” to describe their relationship to the arms provision in the English Bill of Rights.
Historians Reverse Course - Abandon All Bill of Rights History
After having trashed the actual power limiting intent of the the state bills of rights and their arms related protections, the historians proceeded to argue that discussions supporting and opposing the new Constitution's militia powers are the history of Second Amendment development. The only problem with this approach is that the Second Amendment, along with the other first eight amendments that it is part and parcel of, does not have a militia powers amending history. Instead, it has a Bill of Rights related history not found in the brief.
The demand for a Federal bill of rights was based on desire for protections found in the state bills of rights and originated in the 1787 Federal Convention. Failure of the Federal Convention to include such a bill of rights in the proposed Constitution resulted in refusal of prominent members to sign it. These facts go completely unmentioned by the historians in a brief ostensibly about Bill of Rights history. Substituted for this essential and directly relevant information is a largely irrelevant discussion of militia powers development in the Federal Convention. The historians argue that Federalist concern for Antifederalist arguments about misuse of militia powers was the reason the Second Amendment was developed, but they fail to mention the very clear amendment, which had nothing to do with separately listed state bill of rights based amendments, that indicated "each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia. . ." [OSA p.460] Clearly, it is this non-bill of rights related militia powers amendment that related to Antifederalist concerns about Federal misuse of militia power, not the Second Amendment. A completely ignored essential fact in the brief is that the Second Amendment was developed directly from state declaration of rights language limiting state governments just as the other first eight amendments were.
In short, after destroying and permanently burying the actual predecessors of the Second Amendment, the historians divert entirely away from its relevant Bill of Rights related history and present the history of a militia powers amendment in its place as if they were one and the same. They were not the same, and the historians completely off-track “history” of the Second Amendment will be documented in future parts of this series.