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]