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.