Professional Academic Historians' Heller Amicus Brief a Disgrace
A George Mason Retrospective
Updated April 5, 2013
George Mason is mentioned only once in the entire Rakove historians' Heller amicus brief, and then only for a misleading argument suggesting that the Second Amendment predecessor was intended to guarantee authority to the state governments over arming the militia (see part 18, below).
The historians' brief, ostensibly about the history of the Second Amendment, a U.S. Bill of Rights provision, fails to mention any of the relevant and essential facts that link George Mason to development of the U.S. Bill of Rights predecessors. He was the single person most responsible for demanding a federal bill of rights based on the state bills of rights. The first such demand occurred within the Federal Convention and came directly from Mason. The historians completely ignored this milestone in development of the U.S. Bill of Rights in order to emphasize their argument about development of the Constitution's militia powers as the source of a Bill of Rights provision instead. Amazingly, the historians even fail to mention that it was Mason who first brought up the subject of regulating the militia in the Federal Convention. Mason was a major player in development of the Constitution in Philadelphia.
In his Objections to the Constitution, which was published shortly after the Constitution was made public, Mason made clear the bill of rights concern of those opposing ratification. The new Constitution gave power to the federal government that specifically made laws of Congress superior, not only to the laws passed by the states, but also to the state constitutions. During the Revolution, Americans had constitutionally protected their rights against misconstruction and abuse of power by the new state government within the new state constitutions, and most specifically in declarations or bills of rights.
Thus, it was very clear to George Mason that a federal bill of rights providing the same protections found in the state bills of rights was necessary in the new U.S. Constitution. Without such a bill of rights, there was no security for liberty and the continued exercise of their constitutionally protected rights by the people of the United States. It was protection of these very rights that had largely influenced Americans to revolt against the extravagant British claims of power and to establish new state governments under written constitutions with limiting bills of rights. As subsequent events made clear, most Americans were not willing to adopt a new form of government without including these protections in a constitutional level bill of rights.
Mason was notorious for his refusal to sign the new Constitution due to the lack of a bill of rights(there were only three non-signers). Before leaving Philadelphia, Mason met with and discussed his concerns about lack of a bill of rights in the new Constitution with all of the men who later became leaders of the Pennsylvania Minority, William Findlay, John Smilie, and Robert Whitehill. It was these men who argued for a bill of rights and other amendments in Pennsylvania's ratifying convention, and Whitehill who proposed virtually a complete Bill of Rights for the Constitution based on the Pennsylvania Declaration of Rights. John Smilie mentioned during debate in the Pennsylvania Ratifying Convention that he had discussed the Virginia Bill of Rights with George Mason.
Later, Mason gave a memorable speech on returning to Virginia from the Federal Convention. He indicated that he would have rather cut off his hand than sign the Constitution because it did not protect the rights of the people - strong words from a giant of American constitutionalism.
The model Bill of Rights adopted by the Virginia and North Carolina ratifying conventions was written by George Mason, who was chairman of an Antifederalist amendments committee in Virginia's convention. Shortly after its formation, and well before it was introduced in Virginia's convention, Mason sent his Bill of Rights on to New York Antifederalists. They used it as the basis of the New York Ratification Declaration of Rights. It was Mason's letter sent with the complete model Bill of Rights to New York that definitively proves the Second Amendment predecessor could not have been intended as a militia powers amendment because the committee had not yet considered any amendments on that subject.
One would think that at least some bits or pieces of this most relevant information for understanding the Second Amendment's development might have made its way into the historians' Heller brief considering that it was prepared by a large group of professional academic historians, but that is not the case. The historians, on the contrary, seem to have actually gone out of their way to separate all relevant Bill of Rights related information linking the Second Amendment to Bill of Rights development in order to make their militia powers only related argument seem the more plausible. As a result, Mason in general is out and only militia references are in. That their argument is internally inconsistent, reliant on numerous erroneous statements, and is directly contradicted by a veritable sea of period sources is well documented in prior posts of this series.
George Mason is The Man
Yet, there is even more and equally relevant information linking George Mason to development of the Second Amendment's structure, language, sources, and meaning. Mason is the man who wrote the first American state bill of rights, that of Virginia in 1776. He was the first to use a well regulated militia reference in a state bill of rights as he developed it for the lead clause of the original Mason Triad, a power limiting structure later adopted in every state bill of rights formed before the U.S. Bill of Rights. Mason Triads related to establishment of civil government and civil control of the military. In other words, they related to protection of an armed civil population.
Tracing back Mason's usage of well regulated militia language, something one would expect of any good historian, it becomes clear that the well regulated militia reference is not to government authorized forces, but rather to self-embodying defensive associations of civilians that were only possible because the people possessed and knew how to use their own arms. Mason was a very early community organizer of Fairfax county's able-bodied free men. He urged them to form companies, elect officers, and train with their own arms as an effective defensive force against government tyranny, and later referred directly to this association as a well regulated militia, simply meaning an effective militia.
These most relevant facts about George Mason's personal involvement in over a decade of early American Second Amendment related Bill of Rights development directly contradict everything that the professional historians' brief attempts to establish using only bare assertions and the academic credentials of the signatories as collateral. It is to be hoped that many more of those interested in the Second Amendment will become more familiar with the overwhelming shortcomings of the historians' brief. In this way, those who have relied upon it may see the light, and the damage it has caused in continuing the completely unnecessary and polarizing dispute about Second Amendment intent can be properly buried in the ocean of American historical facts.
[The short guide to the most relevant parts of that ocean of historical facts can be found in: The Founders' View of the Right to Bear Arms]
Monday, May 25, 2009
Root Causes of Never-ending Second Amendment Dispute - Part 19
Ignored Facts, Unfounded Assertions, and the Rakove Professional Historians' Heller Amicus Brief
Returning to the George Mason quote in the professional historians' Heller brief:
"George Mason similarly imagined how the militia might be disarmed: not by the federal government confiscating weapons, but rather, “Under various pretences, Congress may neglect to provide for arming and disciplining the militia, and the State Governments cannot do it, for Congress has an exclusive right to arm them.”"[p.20]
One paragraph later, the historians assert:
Assertion #10
"Text and context both establish that the dominant issue throughout the period of ratification was the future status and condition of the militia, not the private rights of individuals. Even when Anti-Federalists spoke of the militia being disarmed, their expressed concern was not the specter of federal confiscation or prohibition of private weapons, but rather that the national government might neglect to provide arms." [p.21]
Fact Checking Assertion #10
Other Antifederalists in addition to Mason made disarming arguments related to future destruction of the militia by federal failure to arm them, which would result in the necessity of a federal standing army for defense. However, directly contrary to the historian's claim, Antifederalists also used the term disarm in the sense of federal confiscation or prohibition of private weapons. For example, an Antifederalist writing under the pseudonym Aristocrotis stated the following in a pamphlet entitled The Government of Nature Delineated:
"The second class or inactive militia, comprehends all the rest of the peasants; viz. the farmers, mechanics, labourers, etc, which good policy will prompt government to disarm." [The Origin of the Second Amendment, p.331]
Aristocrotis' statement can only be interpreted as relating to taking private arms away from all the rest of the farmers, mechanics, laborers, etc. who are not made part of a government formed select militia, which Aristocrotis had just described prior to the above statement in his pamphlet.
In another example, an Antifederalist article printed in the Philadelphia Freeman's Journal and addressed "To the PEOPLE OF AMERICA" noted that:
"[Congress] well know the impolicy of putting or keeping arms in the hands of a nervous people, at a distance from the seat of a government, upon whom they mean to exercise the powers granted in that government. . . they at their pleasure may arm or disarm all or any part of the freemen of the United States, so that when their army is sufficiently numerous, they may put it out of the power of the freemen militia of America to assert and defend their liberties, however they might be encroached upon by Congress." [OSA 211, 212]
This Antifederalist statement similarly used disarm to mean removal of all arms from the freemen of the United States, not a failure of government to provide them with arms.
Disarming arguments from the period were often stated in terms of disarming the people, arguments the historians avoided addressing by specifying Antifederalist militia disarming statements. The brief previously denied that the Founders treated the militia as the mass of the people, a completely erroneous statement documented in part 17. Both of the above Antifederalist disarming examples not only directly contradict the assertion in the brief, but they also further illustrate the fact that the historians are either largely unfamiliar with relevant period sources indicating the militia were understood as the people or they are in complete denial of period reality as documented in easily available sources.
Assertion #10 is also Misleading
The historians' assertion also misrepresents and diverts attention away from much of the disarming argument during the ratification period. In conjunction with Mason's disarming statement, it is used to further separate the clear bill of rights related disarming statements voted on in two ratifying conventions from the militia powers only related history being advanced by the historians to explain away "the right of the people to keep and bear arms" provision of the U.S. Bill of Rights. In the Pennsylvania Ratifying Convention this proposal was made:
"That the people have a right to bear arms for the defence 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." [OSA, p.151]
This Antifederalist disarming language was simply added to the existing Mason Triad from Pennsylvania's 1776 Declaration of Rights. The state's right to bear arms language was treated as a variant of a well regulated militia reference by the historians themselves earlier in their brief in order to divert attention away from it (see part 6, below). It is obvious that Pennsylvania's language, both the 1776 state bill of rights and the 1787 proposed federal bill of rights, was intended to protect private rights to possess and use arms for self defense, defense of the state, and in the latter case for defense of the country and for hunting, and that the use of disarming relates to preventing confiscation or prohibition of private weapons used for any and all of those purposes. The disarming language here cannot be taken in any other way. This is undoubtedly the reason why the historians felt compelled to address so many pages of their brief trying to explain away Pennsylvania bill of rights language during both periods (see parts 5 through 8 and 14).
Another Antifederalist disarming statement is the proposed amendment adopted by the New Hampshire Ratifying Convention:
"Congress shall never disarm any citizen, unless such as are or have been in actual rebellion." [OSA, p. 456]
This clearly related to preventing confiscation or prohibition of private weapons. If Congress could not disarm any citizen, it could not disarm any militiaman of his own weapons either, thus preventing disarming of the militia as then understood, the mass of the people. The historians simply divert attention away from the above clearly Second Amendment related provisions by arguing they do not contain a militia reference like the Second Amendment does.
Federalists, who were openly opposed to disarming of the people, made some of the clearest arguments about disarming them of their own arms, all of which the historians ignore here by specifying a particular use of disarming by Antifederalists. It was because of the often stated fear by Antifederalists that the people would be disarmed that Federalists offered a counter argument that disarming was not intended or possible under the proposed U.S. Constitution. Here are some examples:
"Before a standing army can rule, the people must be disarmed; as they are in almost every Kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States." [Noah Webster], [OSA, p.40]
The people must be disarmed here refers to taking private arms away from the people.
"Tyrants never feel secure until they have disarmed the people. . . .But the people of this country have arms in their hands, . ." [The Republican], [OSA, p.190]
This reference also uses disarmed to mean taking arms away from the people and prohibiting their possession.
"Congress have no power to disarm the militia. Their swords, and every other terrible instrument of the soldier, are the birthright of an American." [Tench Coxe], [OSA, p.276]
Clearly, it was not the birthright of an American to be given arms by the government. The vast majority of all small arms suitable for military defense were privately owned weapons belonging to the people who possessed them. The disarm reference related to confiscating and prohibiting privately owned arms.
"The people are not to be disarmed of their weapons. They are left in full possession of them." [Zacharia Johnson], [OSA, p. 452]
Disarmed is used here to mean confiscation and prohibition of private arms.
In addition to Federalist disarming statements relating to the impossibility of confiscation and prohibition of private arms, there were a large number of Antifederalist disarming statements directly related to a specific Pennsylvania Executive Council action calling for collection of all publicly owned arms from militiamen in the state for clearing and repair. This action did not relate to privately owned arms, but shows Antifederalists used disarm in relation to removing arms from the hands of militiamen. Antifederalist commentary there pointed out the advantage of the militia being able to rely on their own arms, which could not be collected by the government, rather than those belonging to the state (Pennsylvania provided publicly owned arms for one-fourth of its militiamen).
Conclusion - Assertion #10 is Erroneous and Presents an Extremely Misleading View of Period Disarming Arguments
Period evidence contradicts the historians that militia disarming references by Antifederalists did not relate to confiscation or prohibition of private weapons. Also, the historian's argument is misleading because disarming arguments of the period often equated the militia and the people as in the two Antifederalist examples. There are numerous other references to disarming the people from Federalists, who also opposed confiscation or prohibition of private weapons, and who also understood the people to be the militia. The historians used this assertion in relation to the Mason quote, once again, to separate militia related arms discussion from discussion of private arms, when the period sources indicate no such unnatural separation, and instead, routinely equated the militia and the people, as noted in post 17. Militia arms were overwhelmingly the people's privately owned arms.
Rather than enlightening, the historians' assertion further confuses readers about period disarming statements, thus indicating the historians are confused about the subject. Disarming of the militia during the ratification era meant disarming of the people because period sources treated them as one and the same.
Returning to the George Mason quote in the professional historians' Heller brief:
"George Mason similarly imagined how the militia might be disarmed: not by the federal government confiscating weapons, but rather, “Under various pretences, Congress may neglect to provide for arming and disciplining the militia, and the State Governments cannot do it, for Congress has an exclusive right to arm them.”"[p.20]
One paragraph later, the historians assert:
Assertion #10
"Text and context both establish that the dominant issue throughout the period of ratification was the future status and condition of the militia, not the private rights of individuals. Even when Anti-Federalists spoke of the militia being disarmed, their expressed concern was not the specter of federal confiscation or prohibition of private weapons, but rather that the national government might neglect to provide arms." [p.21]
Fact Checking Assertion #10
Other Antifederalists in addition to Mason made disarming arguments related to future destruction of the militia by federal failure to arm them, which would result in the necessity of a federal standing army for defense. However, directly contrary to the historian's claim, Antifederalists also used the term disarm in the sense of federal confiscation or prohibition of private weapons. For example, an Antifederalist writing under the pseudonym Aristocrotis stated the following in a pamphlet entitled The Government of Nature Delineated:
"The second class or inactive militia, comprehends all the rest of the peasants; viz. the farmers, mechanics, labourers, etc, which good policy will prompt government to disarm." [The Origin of the Second Amendment, p.331]
Aristocrotis' statement can only be interpreted as relating to taking private arms away from all the rest of the farmers, mechanics, laborers, etc. who are not made part of a government formed select militia, which Aristocrotis had just described prior to the above statement in his pamphlet.
In another example, an Antifederalist article printed in the Philadelphia Freeman's Journal and addressed "To the PEOPLE OF AMERICA" noted that:
"[Congress] well know the impolicy of putting or keeping arms in the hands of a nervous people, at a distance from the seat of a government, upon whom they mean to exercise the powers granted in that government. . . they at their pleasure may arm or disarm all or any part of the freemen of the United States, so that when their army is sufficiently numerous, they may put it out of the power of the freemen militia of America to assert and defend their liberties, however they might be encroached upon by Congress." [OSA 211, 212]
This Antifederalist statement similarly used disarm to mean removal of all arms from the freemen of the United States, not a failure of government to provide them with arms.
Disarming arguments from the period were often stated in terms of disarming the people, arguments the historians avoided addressing by specifying Antifederalist militia disarming statements. The brief previously denied that the Founders treated the militia as the mass of the people, a completely erroneous statement documented in part 17. Both of the above Antifederalist disarming examples not only directly contradict the assertion in the brief, but they also further illustrate the fact that the historians are either largely unfamiliar with relevant period sources indicating the militia were understood as the people or they are in complete denial of period reality as documented in easily available sources.
Assertion #10 is also Misleading
The historians' assertion also misrepresents and diverts attention away from much of the disarming argument during the ratification period. In conjunction with Mason's disarming statement, it is used to further separate the clear bill of rights related disarming statements voted on in two ratifying conventions from the militia powers only related history being advanced by the historians to explain away "the right of the people to keep and bear arms" provision of the U.S. Bill of Rights. In the Pennsylvania Ratifying Convention this proposal was made:
"That the people have a right to bear arms for the defence 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." [OSA, p.151]
This Antifederalist disarming language was simply added to the existing Mason Triad from Pennsylvania's 1776 Declaration of Rights. The state's right to bear arms language was treated as a variant of a well regulated militia reference by the historians themselves earlier in their brief in order to divert attention away from it (see part 6, below). It is obvious that Pennsylvania's language, both the 1776 state bill of rights and the 1787 proposed federal bill of rights, was intended to protect private rights to possess and use arms for self defense, defense of the state, and in the latter case for defense of the country and for hunting, and that the use of disarming relates to preventing confiscation or prohibition of private weapons used for any and all of those purposes. The disarming language here cannot be taken in any other way. This is undoubtedly the reason why the historians felt compelled to address so many pages of their brief trying to explain away Pennsylvania bill of rights language during both periods (see parts 5 through 8 and 14).
Another Antifederalist disarming statement is the proposed amendment adopted by the New Hampshire Ratifying Convention:
"Congress shall never disarm any citizen, unless such as are or have been in actual rebellion." [OSA, p. 456]
This clearly related to preventing confiscation or prohibition of private weapons. If Congress could not disarm any citizen, it could not disarm any militiaman of his own weapons either, thus preventing disarming of the militia as then understood, the mass of the people. The historians simply divert attention away from the above clearly Second Amendment related provisions by arguing they do not contain a militia reference like the Second Amendment does.
Federalists, who were openly opposed to disarming of the people, made some of the clearest arguments about disarming them of their own arms, all of which the historians ignore here by specifying a particular use of disarming by Antifederalists. It was because of the often stated fear by Antifederalists that the people would be disarmed that Federalists offered a counter argument that disarming was not intended or possible under the proposed U.S. Constitution. Here are some examples:
"Before a standing army can rule, the people must be disarmed; as they are in almost every Kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States." [Noah Webster], [OSA, p.40]
The people must be disarmed here refers to taking private arms away from the people.
"Tyrants never feel secure until they have disarmed the people. . . .But the people of this country have arms in their hands, . ." [The Republican], [OSA, p.190]
This reference also uses disarmed to mean taking arms away from the people and prohibiting their possession.
"Congress have no power to disarm the militia. Their swords, and every other terrible instrument of the soldier, are the birthright of an American." [Tench Coxe], [OSA, p.276]
Clearly, it was not the birthright of an American to be given arms by the government. The vast majority of all small arms suitable for military defense were privately owned weapons belonging to the people who possessed them. The disarm reference related to confiscating and prohibiting privately owned arms.
"The people are not to be disarmed of their weapons. They are left in full possession of them." [Zacharia Johnson], [OSA, p. 452]
Disarmed is used here to mean confiscation and prohibition of private arms.
In addition to Federalist disarming statements relating to the impossibility of confiscation and prohibition of private arms, there were a large number of Antifederalist disarming statements directly related to a specific Pennsylvania Executive Council action calling for collection of all publicly owned arms from militiamen in the state for clearing and repair. This action did not relate to privately owned arms, but shows Antifederalists used disarm in relation to removing arms from the hands of militiamen. Antifederalist commentary there pointed out the advantage of the militia being able to rely on their own arms, which could not be collected by the government, rather than those belonging to the state (Pennsylvania provided publicly owned arms for one-fourth of its militiamen).
Conclusion - Assertion #10 is Erroneous and Presents an Extremely Misleading View of Period Disarming Arguments
Period evidence contradicts the historians that militia disarming references by Antifederalists did not relate to confiscation or prohibition of private weapons. Also, the historian's argument is misleading because disarming arguments of the period often equated the militia and the people as in the two Antifederalist examples. There are numerous other references to disarming the people from Federalists, who also opposed confiscation or prohibition of private weapons, and who also understood the people to be the militia. The historians used this assertion in relation to the Mason quote, once again, to separate militia related arms discussion from discussion of private arms, when the period sources indicate no such unnatural separation, and instead, routinely equated the militia and the people, as noted in post 17. Militia arms were overwhelmingly the people's privately owned arms.
Rather than enlightening, the historians' assertion further confuses readers about period disarming statements, thus indicating the historians are confused about the subject. Disarming of the militia during the ratification era meant disarming of the people because period sources treated them as one and the same.
Sunday, May 24, 2009
Root Causes of Never-ending Second Amendment Dispute - Part 18
Off-Track Militia Powers Historiography Erroneously Linked to Origin of the Second Amendment in the Rakove Heller Amicus Brief
[Updated July 18, 2009]
The heart of Professor Rakove's Heller amicus brief consists of eight consecutive pages consisting of militia powers development in the Federal Convention, subsequent ratification era dispute about those powers, culminating with Virginia Ratifying Convention debate on that subject. An Antifederalist argument about disarming the militia is the emphasized point concerning militia powers discussion in Virginia's convention. The historians point out that Virginia's convention is where the Second Amendment's antecedent language originated, ostensibly as the result of all the militia powers debate and the Virginia Convention disarming statement they have detailed and emphasized.
A George Mason statement regarding disarming the militia made in Virginia's convention is the vehicle used in the brief to link the militia powers debate to appearance of the Second Amendment's predecessor language.
"George Mason similarly imagined how the militia might be disarmed: not by the federal government confiscating weapons, but rather, “Under various pretences, Congress may neglect to provide for arming and disciplining the militia, and the State Governments cannot do it, for Congress has an exclusive right to arm them.” [p.20]
The brief points out that Virginia Federalists responded to Mason indicating that power over the militia was concurrent between the state and federal governments, thus assuring the state's ability to arm the militia. Mention of the Second Amendment predecessor is then inserted into the historians' militia powers history at this point:
"Because the Virginia convention was so evenly divided, Federalists accepted a proposal to recommend constitutional amendments to the first Congress. This was where the antecedent wording of the Second Amendment can be found, closely followed by the similar language adopted by New York two weeks later." [pp. 20-21]
While the subjects of the militia and disarming can certainly be related to the Second Amendment's language, the Second Amendment antecedent from Virginia did not result from the militia powers dispute that Mason was discussing in the quote presented by Professor Rakove. The Second Amendment instead resulted from ongoing demands for a federal bill of rights based on existing state bill of rights protections, an intense ratification era dispute that Professor Rakove virtually ignored in the professional historians' brief. Further examination of the Virginia militia powers debate details and the actual amendments proposed by Virginia make this point very clear.
The Mason quote in the brief relating to disarming the militia was his presentation of a plausible method by which the new federal government could justify a permanent standing army by destroying the militia through inaction. The government could simply fail to provide for arming and disciplining the militia. Mason's disarming argument was offered in support of the Antifederalist view that power over arming and disciplining the militia should be guaranteed to the states in the new Constitution. In fact, Mason stated exactly what type of amendment Antifederalists in Virginia desired to solve these concerns immediately after making his militia disarming related arguments:
"in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the states may arm and discipline them. With this single exception, I would agree to this part [of the Constitution]" [The Origin of the Second Amendment, p.402]
The concern expressed in the militia powers related arguments, including Mason's quote in the brief, related to guaranteeing state authority over the militia. It did not relate to adding state bill of rights protections, such as the Second Amendment predecessor, to the U.S. Constitution. At the close of Virginia's convention, Antifederalists proposed two lists of amendments - a complete Bill of Rights and a list of twenty "other" amendments, both later adopted by the Convention. All of the Bill of Rights provisions were directly based on existing state bills of rights provisions, while none of the "other" amendments were so based.
George Mason, as chairman of the Antifederalists' amendments committee, was the author of both lists of amendments. It was one of these “other” Mason prepared amendments that was specifically intended to solve the lack of state militia power concern expressed in his disarming argument.
"11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same." [OSA, p.460]
It cannot be more clear that it was this proposed “other” amendment that resulted from Mason's militia disarming argument in the Virginia Ratifying Convention, not the antecedent Second Amendment language from the proposed Bill of Rights.
Professor Rakove does not accurately quote the Second Amendment predecessor language that his brief suggests as the resolution of Mason's disarming argument and the militia powers debate. This language comes from Article 17 of the proposed Bill of Rights:
"17th. That the people have a right to keep and bear arms; 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; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power." [OSA, p. 459]
This Bill of Rights proposal is obviously based directly on the existing 1776 Virginia Bill of Rights Mason Triad, the major difference being addition of a right to bear arms variant added to the well regulated militia language at the beginning. [See part 7 for development of the original Mason Triad.] Making use of both right to bear arms and well regulated militia language from existing state bills of rights, it is the original two-clause Second Amendment predecessor.
There is absolutely nothing in this Second Amendment antecedent language indicating any intent to guarantee state authority over the militia or to shift such power from the federal government back to the states. Both clauses of this provision are taken from existing state government limiting bill of rights with the intention of limiting the new government in exactly the same way the state governments were limited. Existing state bill of rights provisions could not have been intended to alter or shift powers between the state governments and the new federal government because all of their protections had been adopted years before the U.S. Constitution was written.
The Rakove professional historians' Heller brief presentation of Second Amendment history has ripped the Second Amendment out of the Bill of Rights, torn it in half, and discarded the right of the people to keep and bear arms clause in order to advance the militia clause as relating solely to protection of state authority. But this argument is directly contrary to the origin of the Second Amendment predecessor clauses in existing state government limiting bills of rights. Blindly advancing a militia powers only intent for the Second Amendment, the professional historians have failed to connect any of the proposed ratification era protections for the right of the people to keep and bear arms with their immediate state bill of rights antecedents.
The more one studies the details and facts relating to the origin of the Second Amendment, the more it becomes evident that the historians' have made a major historical blunder by emphasizing militia powers development and related disagreements during ratification as the origin of the Second Amendment while virtually ignoring the extensive period demands for a federal bill of rights based on existing state bill of rights protections. The latter arguments resulted in development of the Second Amendment, not the former. This is the very reason why the Rakove professional historians' Heller amicus brief contains so many erroneous statements and inconsistencies, as documented in previous parts of this series.
[Updated July 18, 2009]
The heart of Professor Rakove's Heller amicus brief consists of eight consecutive pages consisting of militia powers development in the Federal Convention, subsequent ratification era dispute about those powers, culminating with Virginia Ratifying Convention debate on that subject. An Antifederalist argument about disarming the militia is the emphasized point concerning militia powers discussion in Virginia's convention. The historians point out that Virginia's convention is where the Second Amendment's antecedent language originated, ostensibly as the result of all the militia powers debate and the Virginia Convention disarming statement they have detailed and emphasized.
A George Mason statement regarding disarming the militia made in Virginia's convention is the vehicle used in the brief to link the militia powers debate to appearance of the Second Amendment's predecessor language.
"George Mason similarly imagined how the militia might be disarmed: not by the federal government confiscating weapons, but rather, “Under various pretences, Congress may neglect to provide for arming and disciplining the militia, and the State Governments cannot do it, for Congress has an exclusive right to arm them.” [p.20]
The brief points out that Virginia Federalists responded to Mason indicating that power over the militia was concurrent between the state and federal governments, thus assuring the state's ability to arm the militia. Mention of the Second Amendment predecessor is then inserted into the historians' militia powers history at this point:
"Because the Virginia convention was so evenly divided, Federalists accepted a proposal to recommend constitutional amendments to the first Congress. This was where the antecedent wording of the Second Amendment can be found, closely followed by the similar language adopted by New York two weeks later." [pp. 20-21]
While the subjects of the militia and disarming can certainly be related to the Second Amendment's language, the Second Amendment antecedent from Virginia did not result from the militia powers dispute that Mason was discussing in the quote presented by Professor Rakove. The Second Amendment instead resulted from ongoing demands for a federal bill of rights based on existing state bill of rights protections, an intense ratification era dispute that Professor Rakove virtually ignored in the professional historians' brief. Further examination of the Virginia militia powers debate details and the actual amendments proposed by Virginia make this point very clear.
The Mason quote in the brief relating to disarming the militia was his presentation of a plausible method by which the new federal government could justify a permanent standing army by destroying the militia through inaction. The government could simply fail to provide for arming and disciplining the militia. Mason's disarming argument was offered in support of the Antifederalist view that power over arming and disciplining the militia should be guaranteed to the states in the new Constitution. In fact, Mason stated exactly what type of amendment Antifederalists in Virginia desired to solve these concerns immediately after making his militia disarming related arguments:
"in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the states may arm and discipline them. With this single exception, I would agree to this part [of the Constitution]" [The Origin of the Second Amendment, p.402]
The concern expressed in the militia powers related arguments, including Mason's quote in the brief, related to guaranteeing state authority over the militia. It did not relate to adding state bill of rights protections, such as the Second Amendment predecessor, to the U.S. Constitution. At the close of Virginia's convention, Antifederalists proposed two lists of amendments - a complete Bill of Rights and a list of twenty "other" amendments, both later adopted by the Convention. All of the Bill of Rights provisions were directly based on existing state bills of rights provisions, while none of the "other" amendments were so based.
George Mason, as chairman of the Antifederalists' amendments committee, was the author of both lists of amendments. It was one of these “other” Mason prepared amendments that was specifically intended to solve the lack of state militia power concern expressed in his disarming argument.
"11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same." [OSA, p.460]
It cannot be more clear that it was this proposed “other” amendment that resulted from Mason's militia disarming argument in the Virginia Ratifying Convention, not the antecedent Second Amendment language from the proposed Bill of Rights.
Professor Rakove does not accurately quote the Second Amendment predecessor language that his brief suggests as the resolution of Mason's disarming argument and the militia powers debate. This language comes from Article 17 of the proposed Bill of Rights:
"17th. That the people have a right to keep and bear arms; 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; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power." [OSA, p. 459]
This Bill of Rights proposal is obviously based directly on the existing 1776 Virginia Bill of Rights Mason Triad, the major difference being addition of a right to bear arms variant added to the well regulated militia language at the beginning. [See part 7 for development of the original Mason Triad.] Making use of both right to bear arms and well regulated militia language from existing state bills of rights, it is the original two-clause Second Amendment predecessor.
There is absolutely nothing in this Second Amendment antecedent language indicating any intent to guarantee state authority over the militia or to shift such power from the federal government back to the states. Both clauses of this provision are taken from existing state government limiting bill of rights with the intention of limiting the new government in exactly the same way the state governments were limited. Existing state bill of rights provisions could not have been intended to alter or shift powers between the state governments and the new federal government because all of their protections had been adopted years before the U.S. Constitution was written.
The Rakove professional historians' Heller brief presentation of Second Amendment history has ripped the Second Amendment out of the Bill of Rights, torn it in half, and discarded the right of the people to keep and bear arms clause in order to advance the militia clause as relating solely to protection of state authority. But this argument is directly contrary to the origin of the Second Amendment predecessor clauses in existing state government limiting bills of rights. Blindly advancing a militia powers only intent for the Second Amendment, the professional historians have failed to connect any of the proposed ratification era protections for the right of the people to keep and bear arms with their immediate state bill of rights antecedents.
The more one studies the details and facts relating to the origin of the Second Amendment, the more it becomes evident that the historians' have made a major historical blunder by emphasizing militia powers development and related disagreements during ratification as the origin of the Second Amendment while virtually ignoring the extensive period demands for a federal bill of rights based on existing state bill of rights protections. The latter arguments resulted in development of the Second Amendment, not the former. This is the very reason why the Rakove professional historians' Heller amicus brief contains so many erroneous statements and inconsistencies, as documented in previous parts of this series.
Thursday, May 7, 2009
Root Causes of Never-ending Second Amendment Dispute - Part 17
Ignored Facts, Unfounded Assertions, and the Rakove Professional Historians' Heller Amicus Brief
Updated May 8, 2009
After their presentation of militia powers development in the Federal Convention, which was discussed below in part 10, the historians proceeded to discuss militia matters relating to arms during the ratification period while virtually ignoring the widespread and intense bill of rights dispute from that period. That there were incessant demands for the protections found in the state bills of rights, all of which included Second Amendment predecessors, goes entirely unmentioned by the historians, who are supposedly presenting the history of a Bill of Rights provision. Many of the historians' statements regarding the ratification era debate are completely contradicted by period sources and in some cases by evidence from within their own brief. For an example of the latter, take this statement from the historians:
Assertion #8
"Discussion of citizens' access to firearms during the ratification debates of 1787-1788 focused nearly exclusively on the comparative merits and risks of a standing army or the militia." [p.18]
Fact Checking Assertion #8
The above assertion is directly contradicted by the historians' own brief because they distinctly noted that the first three arms protecting provisions addressed in state ratifying conventions, which were treated out of order later in their brief, related to "private ownership of firearms." Those three provisions were directly addressed in the previous three parts of this series by placing them back in their proper developmental order. None of these provisions were combined with references to a well regulated militia, something the historians have used to misinterpret the purpose of the right to arms provisions that well regulated militia references were later combined with. The historians separated the three early arms proposals from any connection with the Second Amendment even though they all clearly protected the right of the people to keep their own arms. Pennsylvania's provision prevented individuals from being disarmed, as did Samuel Adams' proposal and that adopted by the New Hampshire Ratifying Convention.
Further discussing ratification debate about "the comparative merits and risks of a standing army or the militia," the historians stated that:
Assertion #9
"these exchanges treated the militia not as the disembodied mass of the people, but as a legal institution subject to concurrent national and state administration." [p.19]
Fact Checking Assertion #9
This statement is directly contradicted by numerous period sources, only a few of which are presented here. The use of the term militia in Hamilton's The Federalist #29, a source referred to on the previous page in the historians' brief, directly refutes their statement. Hamilton provides three different definitions of the militia in this text alone:
"the great body of the yeomanry and of the other classes of citizens"
"the people at large"
"the whole nation"
[OSA, pp.197,198]
Contrary to the historians' claim, Hamilton's descriptions treat the militia as the mass of the people, not as an institution. For another Federalist's viewpoint, look back at part 12 and Tench Coxe's Federalist Mantra (below). Coxe describes the militia as "ourselves" in an article addressed to "the Citizens of America." He also describes the militia as "the yeomanry of America from sixteen to sixty." Were the yeomanry of America from sixteen to sixty an institution? Would one describe an institution as ourselves, meaning the citizens of America?
Also in direct conflict with the historians' claim, this time from an Antifederalist, is George Mason's statement in the Virginia Ratifying Convention:
"Who are the militia? They consist now of the whole people, except a few public officers." [OSA, p.430]
Mason's view also contradicts the historians since he treats the militia as the mass of the people, not as an institution.
Conclusion - Assertions #8 and #9 are Both Erroneous
It is not true that discussion of citizens access to firearms during the ratification period focused nearly exclusively on the merits and risks of a standing army or the militia as the historians asserted. As noted by the historians themselves, proposals protecting private possession of arms were discussed and voted on in a number of the state ratifying conventions. It is also not true that such discussion during the period treated the militia as an institution rather than as the mass of the people. Alexander Hamilton's usage in The Federalist #29, Tench Coxe's usage in A Pennsylvanian III and George Mason's usage in the Virginia Ratifying Convention all directly contradict this assertion by the historians. A considerable amount of other period historical evidence also contradicts the historians regarding these two points (see 800 pages of period sources in The Origin of the Second Amendment for numerous other examples).
Those relying on the historians' brief for their understanding of period sources and history should once again consider the fact that, in spite of their claims, the historians are either not overly familiar with relevant period sources, or they are so biased as not to notice when those sources contradict their own statements. What is more likely is that both of these possibilities are in play.
Updated May 8, 2009
After their presentation of militia powers development in the Federal Convention, which was discussed below in part 10, the historians proceeded to discuss militia matters relating to arms during the ratification period while virtually ignoring the widespread and intense bill of rights dispute from that period. That there were incessant demands for the protections found in the state bills of rights, all of which included Second Amendment predecessors, goes entirely unmentioned by the historians, who are supposedly presenting the history of a Bill of Rights provision. Many of the historians' statements regarding the ratification era debate are completely contradicted by period sources and in some cases by evidence from within their own brief. For an example of the latter, take this statement from the historians:
Assertion #8
"Discussion of citizens' access to firearms during the ratification debates of 1787-1788 focused nearly exclusively on the comparative merits and risks of a standing army or the militia." [p.18]
Fact Checking Assertion #8
The above assertion is directly contradicted by the historians' own brief because they distinctly noted that the first three arms protecting provisions addressed in state ratifying conventions, which were treated out of order later in their brief, related to "private ownership of firearms." Those three provisions were directly addressed in the previous three parts of this series by placing them back in their proper developmental order. None of these provisions were combined with references to a well regulated militia, something the historians have used to misinterpret the purpose of the right to arms provisions that well regulated militia references were later combined with. The historians separated the three early arms proposals from any connection with the Second Amendment even though they all clearly protected the right of the people to keep their own arms. Pennsylvania's provision prevented individuals from being disarmed, as did Samuel Adams' proposal and that adopted by the New Hampshire Ratifying Convention.
Further discussing ratification debate about "the comparative merits and risks of a standing army or the militia," the historians stated that:
Assertion #9
"these exchanges treated the militia not as the disembodied mass of the people, but as a legal institution subject to concurrent national and state administration." [p.19]
Fact Checking Assertion #9
This statement is directly contradicted by numerous period sources, only a few of which are presented here. The use of the term militia in Hamilton's The Federalist #29, a source referred to on the previous page in the historians' brief, directly refutes their statement. Hamilton provides three different definitions of the militia in this text alone:
"the great body of the yeomanry and of the other classes of citizens"
"the people at large"
"the whole nation"
[OSA, pp.197,198]
Contrary to the historians' claim, Hamilton's descriptions treat the militia as the mass of the people, not as an institution. For another Federalist's viewpoint, look back at part 12 and Tench Coxe's Federalist Mantra (below). Coxe describes the militia as "ourselves" in an article addressed to "the Citizens of America." He also describes the militia as "the yeomanry of America from sixteen to sixty." Were the yeomanry of America from sixteen to sixty an institution? Would one describe an institution as ourselves, meaning the citizens of America?
Also in direct conflict with the historians' claim, this time from an Antifederalist, is George Mason's statement in the Virginia Ratifying Convention:
"Who are the militia? They consist now of the whole people, except a few public officers." [OSA, p.430]
Mason's view also contradicts the historians since he treats the militia as the mass of the people, not as an institution.
Conclusion - Assertions #8 and #9 are Both Erroneous
It is not true that discussion of citizens access to firearms during the ratification period focused nearly exclusively on the merits and risks of a standing army or the militia as the historians asserted. As noted by the historians themselves, proposals protecting private possession of arms were discussed and voted on in a number of the state ratifying conventions. It is also not true that such discussion during the period treated the militia as an institution rather than as the mass of the people. Alexander Hamilton's usage in The Federalist #29, Tench Coxe's usage in A Pennsylvanian III and George Mason's usage in the Virginia Ratifying Convention all directly contradict this assertion by the historians. A considerable amount of other period historical evidence also contradicts the historians regarding these two points (see 800 pages of period sources in The Origin of the Second Amendment for numerous other examples).
Those relying on the historians' brief for their understanding of period sources and history should once again consider the fact that, in spite of their claims, the historians are either not overly familiar with relevant period sources, or they are so biased as not to notice when those sources contradict their own statements. What is more likely is that both of these possibilities are in play.
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