Root Causes of Never-ending Second Amendment Dispute - Part 13

Professor Jack Rakove and the Historians' Heller Amicus Brief

For a slight change of pace, this post looks at who wrote the historians' amicus brief and examines two accurate statements within it to see exactly how such references are used in support of the historians' grotesquely inaccurate argument.

This series has been very harsh in its criticism of the fifteen academics who signed on to the historians' Heller amicus brief. That will not change. However, the fact is that only one of them actually wrote the brief, probably with help from a few of the co-signers. Most of those who signed probably had little or no input to the brief, and it is likely that a few never even read it, adding their support based entirely on the historical reputation of the author, Jack Rakove. Rakove, professor of history at Stanford University, has taken credit (or blame, depending on your viewpoint) for writing the amicus brief submitted to the U.S. Supreme Court by fifteen historians supporting Washington DC's gun ban in the Heller case. In the future, this brief will be described as either the Rakove brief or historians' brief.

The brief's citation to Gordon S. Wood's book, The Creation of the American Republic, 1776-1787, is used in support of the statement that legislative supremacy was the leading principle of the new American state governments. Wood did state that "their legislatures represented more than the supreme lawmaking authority in their new states." [p.162]

Since the Rakove brief presents this argument and the Woods citation immediately prior to a series of erroneous statements claiming that the state declarations of rights did not have constitutional status nor were they legally binding upon state legislative powers, it appears that Woods generally backs up the Rakove brief's argument. They seemingly agree on the legislative supremacy idea. However, elsewhere in Woods book, he completely contradicts the Rakove brief's argument that the state declarations did not limit state legislative authority, just as the period sources presented in Parts 1 through 3 of this series contradict it. [pp.271-273] The period sources are always better to rely on than secondary sources like Woods' history to determine the period understanding. However, when the argument in the brief is directly contradicted not only by the period sources but also by a specific secondary source cited in it, the term "unreliable" becomes a vast understatement for describing the historical value of the brief.

Even the most innocuous statements in the Rakove brief result in misleading information for the reader. An example is the fourth sentence after the Woods cite that refers to the state declarations of rights, indicating:

"They have also been faulted for being less comprehensive than modern readers might expect them to have been.2" [p.10]

This statement by itself is completely irrelevant although true. Virginia's Declaration of Rights did not protect freedom of speech so not all rights were included in every declaration. [OSA, pp.747-749] Footnote #2 provided in the brief, however, directs the reader's attention to two civil rights laws that do not contain a "right to arms" or "right to keep and bear arms" provision.

There are two very misleading aspects for any reader associated with this innocuous true statement and its footnote. First, comparing civil rights laws, which are alterable by statute law, to state declarations of rights that are not alterable by statute further denigrates the constitutional status of the declarations of rights, which the brief had already been denigrating erroneously. Second, shortly after this statement, the brief equates “well regulated militia” provisions with “right to bear arms” provisions in the state declarations. Since every state declaration of rights had one or the other, none were lacking in an arms related provision, even though some might not contain the exact language quoted in the footnote. This type of misleading information represents another problem of consistency within what is a very flawed brief. If well regulated militia provisions are the equivalent of right to arms provisions, as Professor Rakove claims in the brief, then regarding arms provisions, none of the state declarations of rights are "less comprehensive than modern readers might expect them to have been."