Saturday, January 31, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 3

Ignored Facts, Unfounded Assertions, and the Professional Historians' Heller Amicus Brief
Updated February 2, 2013
The English Bill of Rights was never intended to limit legislative authority, a point exhaustively discussed at the beginning of the Heller amicus brief from fifteen professional historians. The historians compared the English Bill of Rights to American state declarations of rights, arguing that the American versions were also not intended to limit legislative authority. After noting that Britain's Parliament claimed power over the colonists “in all cases whatsoever” and that Americans rejected the claim, the historians assert:

Assertion #3“But in doing so they did not repudiate the general conception of legislative supremacy, which remained the leading principle of the new state constitutions adopted with independence, and that principle embraced a robust conception of the reach of legislative authority.” [p.9]

Fact Checking of Assertion #3
The historians would have readers of their brief believe that Americans rejected the claim of unlimited power by a British Parliament wielding its legislative supremacy and revolted only to adopted in its place a slew of new state governments in which they wanted the law making branch to possess legislative supremacy. Consistency is not a strong point of these fifteen historians, and their assertion is factually incorrect.

As in their first two erroneous assertions, these professional historians have overlooked directly conflicting information from the very person, James Madison, who not only helped develop and adopt Virginia's 1776 Declaration of Rights, but who also relied on its provisions as re-adopted by state ratifying conventions in 1788 to form the proposals for the U.S. Bill of Rights. Madison's understanding, directly at odds with the academic historians' assertion, was presented to Congress in his speech introducing the proposed U.S. Bill of Rights amendments - a source professional historians disputing the intent of a U.S. Bill of Rights provision should be aware of and rely upon as authoritative. Madison stated that: “whatever may be the form which the several States have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.” [OSA p.657]

Conclusion - Assertion #3 is erroneousLegislative supremacy of the type exhibited by Parliament was not a leading principle of the new American constitutions as stated in the historians' Heller brief because, unlike the English Bill of Rights that was never intended to limit Parliament's legislative power, it was the great object of American declarations of rights, according to James Madison, to limit and qualify the powers of government. The fact is that every new state constitution formed between Virginia's in 1776 and New Hampshire's in 1784 had specific limits on legislative authority stated within it. Such limits not only appeared in declarations of rights, they also appeared within the frame of government in those states without bills of rights, and additional limiting provisions were found in some that contained bills of rights. [OSA pp.747-780]

In this and the previous two posts, three completely unfounded assertions found in the Heller amicus filed by fifteen professional academic historians have been identified and proven to be erroneous. Three strikes and you're out. It should be clear to any unbiased person that there is something fundamentally wrong with the professional historians' Heller brief.

Wednesday, January 28, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 2

Ignored Facts, Unfounded Assertions, and the Professional Historians' Heller Amicus Brief

The next assertion to fact check within the professional historians' Heller amicus is in the sentence immediately following assertion #1. It is another claim regarding the state declarations of rights, about which the historians assert:

Assertion #2
“These declarations operated not as legally binding commands but rather as statements of republican principles or common law protections.” [p.10]

Fact checking of assertion #2
Statements of Founders who were responsible for writing and approving the very first American state declaration of rights directly contradict this assertion. Members of the committee assigned to draw up the 1776 Virginia Declaration of Rights, including George Mason, Edmund Randolph, and James Madison, later described the purpose of that document as intended to limit the government's power. Also, the constitutions of at least three states indicated that their declarations of rights ought not to be violated on any pretense whatsoever.

First, George Mason, author of the 1776 Virginia Declaration of Rights, stated the following during the Virginia Ratifying Convention in 1788: "there were certain great and important rights, which the people, by their bill of rights, declared to be paramount to the power of the legislature." [OSA p.436] Mason's specific talking points under discussion at that moment were sections 8 through 13 of Virginia's Declaration of Rights, which included the first state bill of rights well regulated militia language and predecessor of the Second Amendment. [FVRBA p.140]

Next, Edmund Randolph, in his Essay about revolutionary Virginia, wrote that the first purpose for the Virginia Bill of Rights was that the legislature should not in their acts violate any of those canons it contained. [FVRBA p.75]

Third, James Madison, referring to all of the American state bills of rights during his speech introducing the proposals that became the U.S. Bill of Rights into Congress, made this statement : "The people of many States have thought it necessary to raise barriers against power in all forms and departments of Government, and I am inclined to believe, if once bills of rights are established in all the States as well as the federal constitution, that although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency." [OSA p.657]

Additionally, each of the three state constitutions that made their state declarations of rights part of the constitution, as noted in the prior post, also indicated that those declarations of rights ought never to be violated on any pretense whatsoever. The relevant section of the 1776 Constitution of Pennsylvania stated: "Sect. 46. The declaration of rights is hereby declared to be part of the constitution of this commonwealth, and ought never to be violated on any pretence whatever." [OSA p.755] The virtually identical provision from North Carolina's 1776 Constitution stated: "XLIV. That the Declaration of Rights is hereby declared to be part of the Constitution of this State, and ought never to be violated, on any pretence whatsoever." [OSA p.763] The related provision from Vermont's 1777 Constitution stated: "Section XLIII. The declaration of rights is hereby declared to be a part of the Constitution of this State, and ought never to be violated, on any pretence whatsoever." [OSA p.768]

Conclusion - Assertion #2 is erroneous
The assertion in the Heller amicus from fifteen professional academic historians that the state declarations of rights were not legally binding on the state governments is directly contradicted by the above stated views of three prominent Founders, all of whom were members of the committee that drew up the first American state declaration of rights, and two of whom were later actually responsible for the development of the U.S. Bill of Rights (including the specific two clause structure and language of the Second Amendment). The historians are also contradicted by the specific provisions in the constitutions of Pennsylvania, North Carolina, and Vermont that not only made their declarations of rights part of their constitutions in order to protect them from legislative tampering, but further specified they ought never to be violated on any pretense.

That not one of the fifteen professional academic historian signers of the Heller brief was familiar with these statements from prominent Founders or the provisions of the existing state constitutions that directly contradict their assertion once again emphasizes a lack of familiarity with essential relevant historical information on their part. Of more significance, that these historians make an assertion directly contradicted in Madison's speech to Congress introducing the U.S. Bill of Rights proposals in a brief explicitly relating to the disputed history and intent of a provision it contains is entirely unacceptable from any point of view.

Both erroneous assertions #2 and #1 indicate that the claims in the Heller amicus from fifteen professional academic historians cannot be relied upon as factual because they are unfamiliar with, have misinterpreted, or have ignored relevant period evidence that is essential for understanding Second Amendment history and meaning.

Sunday, January 25, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 1

Ignored Facts, Unfounded Assertions, and the Professional Historians' Heller Amicus Brief

The Heller amicus brief supporting Washington DC filed with the U.S. Supreme Court by fifteen professional historians was the culmination of many years of research into American history. It obviously presented the very best historical arguments from those in the field supporting the city's position. However, the historians' brief included errors of fact, ignored directly contradictory information, and strayed far afield from the actual Bill of Rights history and context of the Second Amendment, and all of this in spite of the fact that fifteen academics were involved. In this and following posts, various errors and misleading assertions in the historians' Heller amicus brief will be examined. Each erroneous or misleading statement will be numbered and fact checked against period information with the error or misleading information documented.

Regarding the eight state declarations of rights formed during the American Revolution and extant at the time the Second Amendment was developed, the historians in their Heller amicus assert:

Assertion #1
“In only two states (Pennsylvania in 1776, Massachusetts in1780) were they made part of the actual constitutions.” [pp.9-10]

Fact checking of assertion #1
There is no doubt that the two state declarations of rights specified by the historians were part of their state constitutions. What there is serious doubt about, however, and what is erroneous about the historans' assertion is that there were only two.

In the case of Pennsylvania, the Constitution of 1776 clearly stated, “Sect. 46. The declaration of rights is hereby declared to be a part of the constitution of this commonwealth” [OSA p.755] But these fifteen historians somehow missed the fact that two other states copied the above Pennsylvania Constitution language almost verbatim making their declarations of rights part of their constitutions also. North Carolina's 1776 Constitution stated, XLIV. That the Declaration of Rights is hereby declared to be a part of the Constitution of this State” [OSA p.763] The other state to have identical language on this matter was Vermont. The Vermont Constitution of 1777 stated, “Section XLIII. The declaration of rights is hereby declared to be a part of the Constitution of this State” [OSA p.768] The fact that such obvious and easily accessed information was overlooked and an assertion made to the Supreme Court that, in effect, it did not exist does not bode well for the factual reliability of the professional historians' Heller amicus brief.

As for Massachusetts, directly after the PREAMBLE of the Massachusetts Constitution of 1780 came “PART THE FIRST”, the title of which was, “A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH OF MASSACHUSETTS”. [OSA p.770] This is obviously the first part of the constitution. Inexplicably however, not one of these fifteen professional historians noticed that New Hampshire's 1784 Constitution had exactly the same constitutional structure in this respect as that of its southern neighbor. The title of “PART I” of the New Hampshire Constitution was “THE BILL OF RIGHTS” [OSA p.775], indicating it was the first part of the constitution.

Conclusion - Assertion #1 is erroneous
The historians' assertion that only two of the eight existing Revolutionary Era state declarations of rights were part of their state constitutions was erroneous and misleading. At least five of the eight state declarations of rights were specifically, in the words of the state constitutions themselves, part of their state constitutions. An obvious error of this type from such a large assemblage of professional academic historians is unacceptable in an amicus brief filed with the U.S. Supreme Court. The nature of this error is not just an embarrassment for the historians. It brings into serious question the factual basis of the historians' Heller amicus brief supporting Washington DC's gun control laws because it indicates that these historians are not overly familiar with the relevant period sources their assertions relate to.