Root Causes of Never-ending Second Amendment Dispute - Part 11

U.S. Bill of Rights Controversy Omitted in the Historians' Heller Amicus Brief

A major political dispute about the need for a federal bill of rights raged during the 1787-1788 ratification debate over the U.S. Constitution. In spite of the fact that it was this major political controversy that led directly to development of the first eight amendments from the existing state declarations of rights, the historians ignored these well documented facts and argued otherwise in the case of the Second Amendment. Remarkably, in the last two-thirds of the their brief, the subject of a bill of rights is only mentioned twice, the second being a red herring argument that will be addressed in a future post. The earlier reference is simply passing mention and involves a standing army proposal by Richard Henry Lee in the Confederation Congress as part of a "Bill of Rights" for the proposed Constitution then under consideration there. R.H. Lee's proposal began:

"It having been found from universal experience, that the most express declarations and reservations are necessary to protect the just rights and liberty of mankind from the silent, powerful and ever active conspiracy of those who govern; and it appearing to be the sense of the good people of America, by the various bills or declarations of rights whereon the government of the greater number of the states are founded, that such precautions are necessary to restrain and regulate the exercise of the great powers given to rulers. In conformity with these principles, and from respect for the public sentiment on this subject, it is submitted, -
That the new constitution proposed for the government of the United States be bottomed upon a declaration or bill of rights, clearly and precisely stating the principles upon which this social compact is founded. . ." [OSA p.27]

The historians ignored this relevant bill of rights related information in Lee's proposal and instead emphasized there was no "firearms" related provision from him. The fact is Lee also failed to include any provision relating to freedom of speech, prevention of quartering troops in time of peace, or any specifics regarding the numerous protections later found in the Fifth and Sixth Amendments. Lee's suggestions were not taken directly from the existing state declarations of rights the way later proposals for a federal bill of rights demonstrably were.

Overly focused on the lack of a "firearms" reference and inclusion of a standing army reference, the historians completely overlooked Lee's comments about the state declarations of rights - comments that directly contradicted their own previous interpretation regarding such provisions' lack of legally binding authority on state legislative power. Obviously, R. H. Lee understood that the state bills of rights "restrain and regulate" state governmental power. He also connected the concept of the power restricting state bills of rights to a new bill of rights for the proposed U.S. Constitution, something the historians abjectly failed to do anywhere in their brief. In fact the historians go out of their way to avoid any such links.

It is not as if Lee's linking the need for a federal bill of rights to the prior power limiting state bills of rights represented a rare period understanding and argument. The ratification era is replete with such references and understandings (see source collection cited above). The historians have simply decided to ignore the actual extensive period historical evidence and advance their personal opinions about the development of the Bill of Rights and its second provision instead, just as they ignored George Mason's seminal attempt for a bill of rights within the Federal Convention. The Bill of Rights history ignoring approach destroys the historical value of these fifteen academics' brief, which was supposed to insure that the U.S. Supreme Court would have "an informed understanding of the history that led to the adoption of the Second Amendment." [p.1]

Utterly worthless for its stated purpose due to lack of relevant historical information and inclusion of erroneous assertions about predecessor language, the historians' Heller brief provides a fundamentally false history of the Second Amendment that four Justices of the Supreme Court used as a foundation for their dissenting opinion in the case.