Root Causes of Never-ending Second Amendment Dispute - Part 14

Fallacious Arguments, Rearranged History, and the Historians' Heller Amicus Brief

In order to further bolster the militia-centric argument in the historians' brief and divert attention away from the Second Amendment's actual Bill of Rights developmental history, Prof. Rakove presents the arms proposals made within state ratifying conventions in a substantially different order than that in which they were developed. The last two states to ratify, Virginia and New York, which included both right to arms and well regulated militia language in their proposals, are presented first, even though they are from late June and early July of 1788. The first three conventions, Pennsylvania, Massachusetts, and New Hampshire, which only included right to arms related language, are presented last and in reverse chronological order even though they are the earlier proposals. North Carolina's proposal including the exact provision as Virginia is ignored completely even though it was developed last.

Prof. Rakove's discussion of the right to bear arms proposal in Pennsylvania's 1787 Ratifying Convention, which was the first developed, is located dead last among such period proposals even though it was actually developed first ahead of five other arms related bill of rights proposals. This first-formed last-discussed approach seriously interferes with understanding the actual historical development of the political struggle to obtain a federal bill of rights during ratification and results in a barrage of erroneous statements in the brief. For this reason, all of Professor Rakove's arguments about specific arms protections proposed in state ratifying conventions are analyzed in this series in their proper chronological order of development.

The opening brief statement about discussion of the earliest arms provisions from the ratification era is:

"In contrast to the numerous discussions of the militia during the ratification debates, explicit references to the private ownership of firearms were few and scattered. The three noteworthy statements come from the Pennsylvania, Massachusetts, and New Hampshire conventions." [p.22]

After this statement, the brief addresses middle conventions, which will be discussed in a future post in proper developmental order. The first state ratifying convention was called by Pennsylvania and assembled in late November of 1787 at Philadelphia. One-third of its delegates opposed ratification of the Constitution, a major reason being lack of a federal bill of rights. Delegate Robert Whitehill proposed fifteen amendments to the Constitution that he described as a “bill of rights.” A Federalist majority of two-thirds opposed all of his proposed amendments. The arms related proposal of the minority is misquoted in the historians' brief, and only the first clause of the article containing it is presented. Thus, the entire Article proposed by Whitehill is presented here:

"7. That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power." [The Origin of the Second Amendment, p. 151]

The above provision is virtually a verbatim copy of Pennsylvania's 1776 Declaration of Rights Mason Triad (see Part 7) with language added to the Second Amendment predecessor. Also, the same Robert Whitehill who introduced this provision in 1787 helped write the 1776 original version. Prof. Rakove conveniently ignores these relevant facts, making no connection to the earlier version of this bill of rights related language.

Prof. Rakove states that it would be an incorrect reading of Whitehill's provision to accept it as evidence “that the founders thought of the right to bear arms as ensuring a private right to possess weapons.” [p.23]

The first problem for Prof. Rakove is that this statement directly contradicts his previous statement about Pennsylvania's convention related provision presented above.

The five reasons given in the brief to support this statement about Whitehill's proposal are examined below. These are all diversionary fallacious arguments.

“First, the dissenters who endorsed this proposal comprised only a third of the Pennsylvania convention."

The number who supported or opposed Whitehill's amendment indicates nothing about what its words indicate about the founders view regarding private possession of arms. This argument is a logical fallacy. Pennsylvania's Federalist majority, in addition to opposing Whitehill's Second Amendment related proposal, also opposed amendments relating to provisions found later in the First, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Amendments of the U.S. Bill of Rights. This brief entirely ignores the Bill of Rights related import of Federalist opposition to rights protections and the political struggle by Antifederalists in support of a bill of rights throughout ratification.

“Second, as previously noted, the reference to “the defense of themselves and their own state” had particular connotations in Pennsylvania, tied not to an individual’s right to defend his home, but to the colonial government’s failure to organize effective militia units prior to independence.”

As demonstrated in Parts 2 and 3 of this series, Pennsylvania history relative to a right of individual arms possession directly contradicted the historians' opinions as stated in their brief. Besides, this diversionary claim cannot explain away the provision's clear “no law shall be passed for disarming the people or any of them” language. If people have a right to bear arms for defense and killing game they must have a private right to possess arms. This argument is not only historically unfounded but also fallacious.

“Third, the proposed formula against "disarming" leaves ample room for police-power regulation by recognizing "real danger of public injury from individuals" as a legitimate basis for public action."

Rakove's third argument also does not back up the professor's specific claim about what the founders understood based on the provision and is thus fallacious. Whitehill's language could not be clearer that private possession of arms was guaranteed except for convicted criminals and extremely dangerous individuals.

"Fourth, the dissenters appeared disinclined to push this right too far. There is no further discussion of the private use of firearms in the explanatory passages of the Dissent." [p.24]

The lack of further discussion in a subsequent publication does not back up Professor Rakove's claim about what the language shows about the founders view on private ownership of arms. This is the fourth fallacious argument in a row about the same point.

"Fifth, and most important, these two clauses fell stillborn on the larger debate that continued to rage for months. . . . Had Anti-Federalists continued to want to push for the constitutional
protection of firearms, ample time remained to muster support in the nine states yet to act on the Constitution. Once published, however, these clauses of the Dissent were politically inert. If the Pennsylvania dissenters tried to place the question of a private right to arms before the body politic, their fellow Americans declined their summons." [p.24]

In direct contradiction to these statements, there were in fact five subsequently developed arms provisions in state ratifying conventions after Pennsylvania's, all of which included period language commonly understood as protecting an individual's right to possess and use arms. The two directly following Pennsylvania's were described by Prof. Rakove himself as relating to “private ownership of firearms” (see first quote at top of post).

This fifth argument connsists of a set of fallacious statements, none of which can enlighten regarding whether Whitehill's provision was understood as a private right to possess weapons or not. These statements, which appear directly before the final sentence about the ratification era in the brief, divert reader attention entirely away from the actual historical facts. Thus, not only are Prof. Rakove's final arguments above fallacious, they are directly contradicted by the period evidence once again and result in another complete inconsistency by Professor Rakove within the historian's brief.

The five arms provisions from subsequent conventions mentioned above will be carefully examined in following posts as numerous additional historical errors, inconsistencies, and fallacious arguments are exposed in the historians' Heller amicus brief.