Root Causes of Never-ending Second Amendment Dispute - Part 23

Diversionary Arguments Abound in the Historians' Heller Amicus Brief

Completely ignoring the restrictive clause of the Second Amendment protecting "the right of the people to keep and bear arms" against infringement, the historians had this to say about Madison's version taken to Congress:

Assertion #13
"Taking the Virginia and New York recommendations as his model, Madison again made the militia the urgent question to confront." [p.25]

Fact Checking of Assertion #13
On the contrary, there was no reason for Madison to deal with militia powers that were already established in the Constitution exactly as the Federalists wanted them. As examined in the previous two posts, what Madison had every reason to do was satisfy the overwhelming Antifederalist demands for adding a bill of rights to the Constitution, the protections of which they took from those already found in the existing state bills of rights. The ratifying convention related proposals for a bill of rights invariably included protection for the right to keep arms. [OSA, pp.151, 260, 446, 459, 481, 505, 735] In the model Bill of Rights developed by George Mason, author of the 1776 Virginia Declaration of Rights, he combined his own original well regulated militia clause with protection for the right to keep and bear arms. [OSA, p.459] Both Mason and Madison understood the predecessor state bill of rights provisions as limits on the state legislatures, and that these same limits were now being placed in a federal bill of rights to protect the same rights against federal abuse of power.

What both the Second Amendment and James Madison's version were intended to do was to assure that "the right of the people to keep and bear arms shall not be infringed." This Madison restrictive language is exactly the same in both provisions. [OSA, pp.654, 716] It is also the language that the historians have consistently bent over backwards to ignore and divert attention away from whenever feasible throughout their brief. Readers are assured that the militia is what "Madison again made" the "urgent question to confront" while the right of the people to keep and bear arms is completely ignored once again in the brief. Where are the period historical sources indicating that Madison considered making the militia powers an urgent question for Congress to confront in relation to his Bill of Rights proposals? There is a reason such sources have not been cited in the brief, because they do not exist. If, as the historians assert, the question Madison was pushing as an amendment to Congress was the militia and it was "urgent", why didn't Madison even mention it in his speech to that body?

The historians presented a page-long straw man argument about what the various points in Madison's notes for his amendments speech to Congress meant. Attempting to divert all attention to the militia clause, they then emphasized that Madison "did not discuss the right to bear arms" in his speech. True, but he also did not discuss freedom of speech, freedom of assembly, the right to petition, the right to counsel, protection against cruel and unusual punishments, and a very great number of other specific rights eventually protected in the U.S. Bill of Rights. Most of the rights he did "discuss," as the historians describe it, were simply mentioned, not discussed. Readers are informed that Madison wanted provisions for freedom of religion, the press, and criminal jury trials as protections against the states, also mentioned in his speech. But where is the "urgent" militia question mentioned in his speech or his notes? Apparently it is not as urgent as the historians purpose of diverting attention away from the right to keep and bear arms clause language.

All of these Madison notes and Congressional speech arguments are used by the historians to divert attention away from much more relevant and important information. In addition to guiding readers away from consideration of the restrictive right to keep and bear arms clause, these arguments divert attention away from the fact Madison stated that the American state bills of rights were intended to limit legislative power. This is a view that directly contradicts the historians' claim upon which this entire brief is founded. Madison stated in his speech to Congress that American bills of rights were intended "to raise barriers to power in all forms and departments of Government." This concept was repeated more than once and was a major point of Madison's Congressional speech introducing his Bill of Rights amendments. The historians are forced to ignore Madison's stated views in order to pursue their confused arguments that are founded on an accumulation of errors about Second Amendment intent. [See parts 1, 2, and 3 of this series for the historians' earliest erroneous statements regarding the intent of the state bills of rights, which contain the Second Amendment's predecessor language.]

Conclusion - Assertion #13 is Erroneous
The historians' assertion that the militia was what Madison considered as an "urgent question to confront" is without historical foundation and is used for entirely diversionary purposes in their brief. Madison never mentioned this "urgent" need for Congress to confront militia powers, and the period evidence clearly indicates, as shown in the previous post, that his concern was private rights in the case of all of the predecessors of the first eight amendments.