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.