Root Causes of Never-ending Second Amendment Dispute - Part 22

More Error Based Confusion in the Historians Heller Amicus Brief

The historians claim that:

Assertion #12
"In drafting the amendments that evolved into the Bill of Rights, James Madison had no reason to place a private right to firearms on his agenda." [p.25]

Fact Checking of Assertion #12
The historians' claim that Madison was not intent on a Second Amendment predecessor relating to "a private right to firearms" completely ignores relevant period sources on Bill of Rights development. The Antifederalists who prepared Second Amendment predecessor language for a new federal bill of rights understood that it would protect the specified rights against the new government in exactly the same way that the state bill of rights predecessors it was based upon protected the same rights against abuse by the state governments, and Madison also understood the proposals this way (as examined in a number of prior parts of this series).

In effect, the historians are arguing that Madison did not have a clue about what he was doing with his own Second Amendment predecessor, although they do not openly state this. Instead, they do the equivalent by completely ignoring every piece of historical evidence about his efforts to organize, group related proposals, and insert these groups of related amendments into the Constitution. They also ignore the period comments by contemporaries indicating how they understood Madison's proposal. He did not intend to add a list of amendments at the end of the Constitution as ultimately occurred. Instead, Madison intended to insert amendments directly into the document at locations where related material was already located. Which provisions did Madison group the Second Amendment with and where did he plan to put it in the Constitution? Was it grouped and placed along with the Tenth Amendment that the historians have directly related its intent to? No. Was it to be placed among the militia powers that the historians have insisted all along it was related to? No.

Madison grouped the Second Amendment predecessor among a large collection of private rights protections. He wanted all of these inserted into the Constitution directly after clauses 2 and 3 of Article I, Section 9. These are the only provisions in the U.S. Constitution that protect specific private rights against violation by the new federal government. Exactly which rights did he group his Second Amendment related language with? - First, Third, Fourth, Fifth, Sixth, and Eight Amendment predecessors, private rights protecting provisions all. [OSA, pp.654-656]

Based on Madison's own actions, it is clear that the historians' assertion is completely off base. Further evidence of Madison's private rights understanding is found in the fact that contemporaries who commented on this proposal understood it just as he did - as protection for private arms rights.

Fisher Ames, a Massachusetts member of the House wrote this about Madison's proposals:

"The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people. Freedom of the press, too." [OSA, p.668]

Tench Coxe's article explaining the purpose for every one of Madison's proposals treated the Second Amendment predecessor as assuring that "the people are confirmed by the next article in their right to keep and bear their private arms." For what purposes? To prevent tyranny by the government itself or by government raised military forces. [OSA, p.671]

Conclusion - Assertion #12 is Erroneous
The period evidence directly contradicts the historians on this matter. Madison had every reason to pursue a Bill of Rights provision protecting the private right to keep and bear of arms. Madison's actions regarding the Second Amendment are no different than those relating to the other private rights protections in the first eight amendments.

Readers of the professional historians' Heller amicus brief have two choices. They can choose to ignore the period evidence indicating the Second Amendment was intended to protect private rights, just as the historians have done. The alternative is to give the Founders a little credit for understanding exactly what they were doing and saying exactly what they meant by recognizing that the historians have founded their brief on an accumulation of errors that undermine every claim they make about the intent of the Second Amendment and its predecessors.