Tuesday, March 31, 2009

Challenge to Supporters of the Heller Dissent

Self-Check Accuracy of the Historians' Heller Amicus Brief
[Updated January 20th, 2012]

This is a challenge to those who believe that the Heller case was wrongly decided. If you are one of those who think that the four dissenting U.S. Supreme Court justices in the case had the historical facts on their side and made the better argument about the Second Amendment, here is the challenge. Verify for yourself whether statements in the professional historians' amicus brief, which the dissenting justices based their history upon, are supported by historical facts.

All that is necessary is to read the statement from the historians' brief below, then click on the direct page links to Google Books posting of F.N. Thorpe's Federal and State Constitutions to verify the accuracy of the statement in the historians' Heller amicus.

Here is the specific statement in the historians' brief to self-check for accuracy:

"In only two states (Pennsylvania in 1776, Massachusetts in1780) were they [state declarations of rights] made part of the actual constitutions.” [pp.9-10]

First, check North Carolina's 1776 Constitution, Article XLIV, page 2794 of Thorpe, Volume 5. This article of the constitution specifies "That the Declaration of Rights is hereby declared to be a part of the Constitution of this State, and ought not to be violated, on any pretense whatsoever." This fact directly contradicts the statement in the historians' brief.

Next, check Vermont's 1777 Constitution, Section XLIII, page 3748 in Thorpe, Volume 6. This section also specifies "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 pretense whatsoever." Both North Carolina's and Vermont's provisions were copied almost verbatim from the 1776 Constitution of Pennsylvania. These provisions make two direct contradictions between period historical sources and the above quoted statement found in the professional historians' Heller brief.

Perhaps another contradiction is needed to emphasize the point being made here. If so, check the New Hampshire 1784 Constitution on page 2453 of Thorpe, Volume 4. [This link no longer works.] Page 2453 of Thorpe, Volume 4, indicates that New Hampshire's 1784 "Bill of Rights" is "Part I" of its Constitution, and page 2458 indicates that "PART II" is "The Form of Government". These facts also directly contradict the statement made in the Rakove historians' brief that only the declarations of rights of Pennsylvania and Massachusetts were "made part of the actual constitutions."

Such glaring and recurring contradictions between relevant historical documents and the simple claim made in the brief call into serious question the reliability of the historians' amicus, which is a foundation of Justice Stevens' Heller historical dissent.

It cannot be conceived that these fifteen historians have purposefully misrepresented the point of their statement to the U.S. Supreme Court. The only alternatives are that the historians may not be as familiar with relevant period history as claimed in the brief, or the historians' statement is a misprint. However, the latter is not the case because Professor Jack Rakove of Stanford University, the author of the brief, made and emphasized exactly the same erroneous assertion to Professor Eugene Volokh of UCLA during a Bloggingheads TV diavlog shortly after the Heller decision. [at 31:40 in the presentation]

These considerations narrow down to one the reason for the error in the professional historians' brief. They are actually not overly familiar with the most relevant historical sources for understanding the Second Amendment's history, and, as a result, the historians' Heller amicus brief is historically unreliable.

For those willing to accept what their own eyes can see and consider the possibility that Heller was rightly decided because the dissent relied on what is inherently unreliable, read the Root Causes of Never-ending Second Amendment Dispute series posted on this blog. It demonstrates that the above contradiction, analyzed in part 1, is merely the tip of a huge iceberg of erroneous statements, internal contradictions, fallacious arguments, and off-track history that make up the historians' Heller amicus brief.

Thursday, March 26, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 14

Fallacious Arguments, Rearranged History, and the Historians' Heller Amicus Brief

In order to further bolster the militia-centric argument in the historians' brief and divert attention away from the Second Amendment's actual Bill of Rights developmental history, Prof. Rakove presents the arms proposals made within state ratifying conventions in a substantially different order than that in which they were developed. The last two states to ratify, Virginia and New York, which included both right to arms and well regulated militia language in their proposals, are presented first, even though they are from late June and early July of 1788. The first three conventions, Pennsylvania, Massachusetts, and New Hampshire, which only included right to arms related language, are presented last and in reverse chronological order even though they are the earlier proposals. North Carolina's proposal including the exact provision as Virginia is ignored completely even though it was developed last.

Prof. Rakove's discussion of the right to bear arms proposal in Pennsylvania's 1787 Ratifying Convention, which was the first developed, is located dead last among such period proposals even though it was actually developed first ahead of five other arms related bill of rights proposals. This first-formed last-discussed approach seriously interferes with understanding the actual historical development of the political struggle to obtain a federal bill of rights during ratification and results in a barrage of erroneous statements in the brief. For this reason, all of Professor Rakove's arguments about specific arms protections proposed in state ratifying conventions are analyzed in this series in their proper chronological order of development.

The opening brief statement about discussion of the earliest arms provisions from the ratification era is:

"In contrast to the numerous discussions of the militia during the ratification debates, explicit references to the private ownership of firearms were few and scattered. The three noteworthy statements come from the Pennsylvania, Massachusetts, and New Hampshire conventions." [p.22]

After this statement, the brief addresses middle conventions, which will be discussed in a future post in proper developmental order. The first state ratifying convention was called by Pennsylvania and assembled in late November of 1787 at Philadelphia. One-third of its delegates opposed ratification of the Constitution, a major reason being lack of a federal bill of rights. Delegate Robert Whitehill proposed fifteen amendments to the Constitution that he described as a “bill of rights.” A Federalist majority of two-thirds opposed all of his proposed amendments. The arms related proposal of the minority is misquoted in the historians' brief, and only the first clause of the article containing it is presented. Thus, the entire Article proposed by Whitehill is presented here:

"7. That the people have a right to bear arms for the defense 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." [The Origin of the Second Amendment, p. 151]

The above provision is virtually a verbatim copy of Pennsylvania's 1776 Declaration of Rights Mason Triad (see Part 7) with language added to the Second Amendment predecessor. Also, the same Robert Whitehill who introduced this provision in 1787 helped write the 1776 original version. Prof. Rakove conveniently ignores these relevant facts, making no connection to the earlier version of this bill of rights related language.

Prof. Rakove states that it would be an incorrect reading of Whitehill's provision to accept it as evidence “that the founders thought of the right to bear arms as ensuring a private right to possess weapons.” [p.23]

The first problem for Prof. Rakove is that this statement directly contradicts his previous statement about Pennsylvania's convention related provision presented above.

The five reasons given in the brief to support this statement about Whitehill's proposal are examined below. These are all diversionary fallacious arguments.

“First, the dissenters who endorsed this proposal comprised only a third of the Pennsylvania convention."

The number who supported or opposed Whitehill's amendment indicates nothing about what its words indicate about the founders view regarding private possession of arms. This argument is a logical fallacy. Pennsylvania's Federalist majority, in addition to opposing Whitehill's Second Amendment related proposal, also opposed amendments relating to provisions found later in the First, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Amendments of the U.S. Bill of Rights. This brief entirely ignores the Bill of Rights related import of Federalist opposition to rights protections and the political struggle by Antifederalists in support of a bill of rights throughout ratification.

“Second, as previously noted, the reference to “the defense of themselves and their own state” had particular connotations in Pennsylvania, tied not to an individual’s right to defend his home, but to the colonial government’s failure to organize effective militia units prior to independence.”

As demonstrated in Parts 2 and 3 of this series, Pennsylvania history relative to a right of individual arms possession directly contradicted the historians' opinions as stated in their brief. Besides, this diversionary claim cannot explain away the provision's clear “no law shall be passed for disarming the people or any of them” language. If people have a right to bear arms for defense and killing game they must have a private right to possess arms. This argument is not only historically unfounded but also fallacious.

“Third, the proposed formula against "disarming" leaves ample room for police-power regulation by recognizing "real danger of public injury from individuals" as a legitimate basis for public action."

Rakove's third argument also does not back up the professor's specific claim about what the founders understood based on the provision and is thus fallacious. Whitehill's language could not be clearer that private possession of arms was guaranteed except for convicted criminals and extremely dangerous individuals.

"Fourth, the dissenters appeared disinclined to push this right too far. There is no further discussion of the private use of firearms in the explanatory passages of the Dissent." [p.24]

The lack of further discussion in a subsequent publication does not back up Professor Rakove's claim about what the language shows about the founders view on private ownership of arms. This is the fourth fallacious argument in a row about the same point.

"Fifth, and most important, these two clauses fell stillborn on the larger debate that continued to rage for months. . . . Had Anti-Federalists continued to want to push for the constitutional
protection of firearms, ample time remained to muster support in the nine states yet to act on the Constitution. Once published, however, these clauses of the Dissent were politically inert. If the Pennsylvania dissenters tried to place the question of a private right to arms before the body politic, their fellow Americans declined their summons." [p.24]

In direct contradiction to these statements, there were in fact five subsequently developed arms provisions in state ratifying conventions after Pennsylvania's, all of which included period language commonly understood as protecting an individual's right to possess and use arms. The two directly following Pennsylvania's were described by Prof. Rakove himself as relating to “private ownership of firearms” (see first quote at top of post).

This fifth argument connsists of a set of fallacious statements, none of which can enlighten regarding whether Whitehill's provision was understood as a private right to possess weapons or not. These statements, which appear directly before the final sentence about the ratification era in the brief, divert reader attention entirely away from the actual historical facts. Thus, not only are Prof. Rakove's final arguments above fallacious, they are directly contradicted by the period evidence once again and result in another complete inconsistency by Professor Rakove within the historian's brief.

The five arms provisions from subsequent conventions mentioned above will be carefully examined in following posts as numerous additional historical errors, inconsistencies, and fallacious arguments are exposed in the historians' Heller amicus brief.

Tuesday, March 24, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 13

Professor Jack Rakove and the Historians' Heller Amicus Brief

For a slight change of pace, this post looks at who wrote the historians' amicus brief and examines two accurate statements within it to see exactly how such references are used in support of the historians' grotesquely inaccurate argument.

This series has been very harsh in its criticism of the fifteen academics who signed on to the historians' Heller amicus brief. That will not change. However, the fact is that only one of them actually wrote the brief, probably with help from a few of the co-signers. Most of those who signed probably had little or no input to the brief, and it is likely that a few never even read it, adding their support based entirely on the historical reputation of the author, Jack Rakove. Rakove, professor of history at Stanford University, has taken credit (or blame, depending on your viewpoint) for writing the amicus brief submitted to the U.S. Supreme Court by fifteen historians supporting Washington DC's gun ban in the Heller case. In the future, this brief will be described as either the Rakove brief or historians' brief.

The brief's citation to Gordon S. Wood's book, The Creation of the American Republic, 1776-1787, is used in support of the statement that legislative supremacy was the leading principle of the new American state governments. Wood did state that "their legislatures represented more than the supreme lawmaking authority in their new states." [p.162]

Since the Rakove brief presents this argument and the Woods citation immediately prior to a series of erroneous statements claiming that the state declarations of rights did not have constitutional status nor were they legally binding upon state legislative powers, it appears that Woods generally backs up the Rakove brief's argument. They seemingly agree on the legislative supremacy idea. However, elsewhere in Woods book, he completely contradicts the Rakove brief's argument that the state declarations did not limit state legislative authority, just as the period sources presented in Parts 1 through 3 of this series contradict it. [pp.271-273] The period sources are always better to rely on than secondary sources like Woods' history to determine the period understanding. However, when the argument in the brief is directly contradicted not only by the period sources but also by a specific secondary source cited in it, the term "unreliable" becomes a vast understatement for describing the historical value of the brief.

Even the most innocuous statements in the Rakove brief result in misleading information for the reader. An example is the fourth sentence after the Woods cite that refers to the state declarations of rights, indicating:

"They have also been faulted for being less comprehensive than modern readers might expect them to have been.2" [p.10]

This statement by itself is completely irrelevant although true. Virginia's Declaration of Rights did not protect freedom of speech so not all rights were included in every declaration. [OSA, pp.747-749] Footnote #2 provided in the brief, however, directs the reader's attention to two civil rights laws that do not contain a "right to arms" or "right to keep and bear arms" provision.

There are two very misleading aspects for any reader associated with this innocuous true statement and its footnote. First, comparing civil rights laws, which are alterable by statute law, to state declarations of rights that are not alterable by statute further denigrates the constitutional status of the declarations of rights, which the brief had already been denigrating erroneously. Second, shortly after this statement, the brief equates “well regulated militia” provisions with “right to bear arms” provisions in the state declarations. Since every state declaration of rights had one or the other, none were lacking in an arms related provision, even though some might not contain the exact language quoted in the footnote. This type of misleading information represents another problem of consistency within what is a very flawed brief. If well regulated militia provisions are the equivalent of right to arms provisions, as Professor Rakove claims in the brief, then regarding arms provisions, none of the state declarations of rights are "less comprehensive than modern readers might expect them to have been."

Monday, March 23, 2009

UPDATE: Jefferson on Government Spending in Relation to Modern Problems

Thomas Jefferson and Inter-generational Theft

For those who appreciated the wisdom of Jefferson as presented in a previous post, consider his equally sound thoughts about inter-generational theft. Jefferson used the unjustness of a man giving away his son's labor for his son's lifetime as the obvious reason why it was unjust for all men to give away all of their sons' labor during all of their sons' lifetimes. The latter of course referred to actions taken by government officials as government policy supposedly under government authority. Today there are some major economic problems. Jefferson's clear thinking on economic issues relating to public policy might indicate what the hidden problem is and lead to recognition of a completely different and better solution than letting things go from very bad to much worse in the hands of those largely responsible for the situation.

The Modern Problem
The current economic situation is largely the result of two separate problems. The first is government policy that has forced lending institutions to loan money for homes to those who cannot actually repay the loans. Due to the government's policy requiring unsound loans for housing, many people have purchased homes much more expensive than they would otherwise have bought. Others have purchased more than a home, they have engaged in extensive speculation in the housing market, buying up houses, especially in a few parts of the country, to make extensive profits. The second problem involves some of the largest financial institutions that have engaged in what amounts to gambling or blatant speculation through the medium of credit default swaps, betting on the likelihood of various large businesses failing. Because of the failure of Freddie and Fanny due to unsound loans caused by equally unsound public policy, the failure of various major financial institutions has become likely, and as a result of a possible string of failures, literally trillions of dollars may be owed to those speculating in credit default swaps.

Modern Inter-generational Theft
The government has responded by assuring those who have speculated will be made whole by Americans through their federal taxes, even if it requires the labor of all men's sons for all of their lives to pay for it. Think about the amount of money that a newborn American owes in future taxes to pay for the gambling debts of those, many of whom have apparently given profusely to federal politicians' campaigns. Don't forget to add in all the other programs funded by debt and the extensive and increasing list of planned federal entitlements imposed. One of the tea party protest children somewhere in the country recently held a sign indicating he was only eight but already owed more than $36,000.

That Americans ever gave any level of government authority to require the repayment out of Americans' taxes of gambling debts and losses due to open speculation is obviously not the case, regardless of whether a contract was involved in the gambling or not. So, exactly where did federal legislators and administration officials get this authority? Apparently it is simply the result of politicians ignoring the power actually given them in the U.S. Constitution and doing whatever they please whenever they want. That many of the financial institutions that are receiving astronomical amounts of money from our government to cover their gambling losses also gave very sizable sums of money to the legislators in charge of overseeing the financial sector smacks of corruption.

The scale of this activity combined with the lack of clarity about exactly what Americans are paying for and WHY is rather disturbing. Some bonuses for AIG employees recently publicized have resulted in a dog and pony show that will probably result in the real problem and the really huge amounts of money, thousands and probably hundreds of thousands times more than the bonuses involved, being hidden from view. These bonuses, how they were handled, and WHY they should be paid are the tiny tip of a massive iceberg of money flow that needs to be recognized and properly dealt with to help prevent running future generations into debt as a political "favor" to those who spend big bucks on political campaigns.

The Audacity of Criminal Enterprises
The terms that come to mind relative to blatant political contributions by gamblers and bailing out gamblers by politicians using tax dollars are these - audacious criminal enterprise. For those who think this terminology too harsh, has there been the slightest attempt yet to alter the policies that require banks to make unsound home loans or to prevent those with the money from buying powerful politicians?

Exactly where in the U.S. Constitution does it say that the government has power to tax Americans, even entire future generations by borrowing, for the purpose of reimbursing the gambling losses of certain wealthy individuals and companies that contribute large amounts of money to powerful politicians' campaigns? In addition to audacious criminal enterprise, the term that comes to mind is - unconstitutional.

Saturday, March 21, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 12

Ratification Era Arms Arguments Misconstrued in the Historians' Heller Amicus Brief

Regarding the ratification period arms related arguments, the historians state that:

"Discussion of citizens' access to firearms during the ratification debates of 1787-1788 focused nearly exclusively on the comparative merits and risks of a standing army or the militia." [p.18]

The historians view militia related discussion solely as indicating government authorized militia. Thus, their statement above is entirely misleading. They do not recognize any relationship between the militia mentioned in the Second Amendment and its actual predecessor language in the state bills of rights, which were all restrictions on state authority in favor of an armed civil population rather than references to government authorized militia. The state declarations of rights provisions uniformly related to an armed population that not only authorized the revolutionary era state governments but also secured the civil population's ultimate control over government raised military force. The same bill of rights related concepts of civil control of the military hold true for much of the arms related debate during ratification, although the historians consistently ignored it by refusing to relate the Second Amendment to its state declaration of rights predecessors or to the ongoing period bill of rights dispute.

There were two opposing and oft repeated ratification era arguments about arms and military force appearing in the writings of the period's political partisans that related to bill of rights history much more so than to the historian's proffered militia powers history. A common Federalist Mantra, asserted by those supporting ratification and arguing against a bill of rights, indicated, in its simplest form, that military tyranny was impossible in America because the people were armed. The Antifederalist Mantra was the contrary view from those opposing ratification and supporting a bill of rights. This mantra was a warning that the new government's overwhelming control of military force, whether standing army, select militia (understood as a part-time standing army), or militia in general would be used in such a way as to disarm the people and impose military tyranny and oppression. Simple inclusion in a federal bill of rights of the protections already existing in every one of the state declarations of rights would solve this bill of rights related problem. The historians obviously miss the bill of rights related point of these arguments, that an armed populace is necessary to prevent tyranny. [For more information on the Federalist and Antifederalist Mantras, see The Founders' View of the Right to Bear Arms.]

Thus, it was not only the Antifederalists that painted a clear picture of an armed populace during the ratification debate. Federalist Mantras presented the reverse arms related argument, which was also often unconnected with government authority over militia. Here is the very detailed Federalist Mantra of Tench Coxe presented in his pseudonymous A Pennsylvanian III article addressed to the citizens of America (Feb. 20, 1788):

"The power of the sword, say the minority of Pennsylvania is in the hands of Congress. My friends and countrymen, is is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army must be tremendous and irresistable. Who are these militia? are they not our selves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. What clause in the state or foederal constitution hath given away that important right."

Coxe went on to discuss military power and its constitutional authorization in America, but he emphasized that "the unlimited power of the sword is not in the hands if either the foederal or state governments, but, where I trust in God it will ever remain, in the hands of the people." [Origin of the Second Amendment, pp.275-276, all emphasis is in original]

An interesting point about this Federalist Mantra is that Coxe was inspired to write it by James Madison's own Federalists Mantra found in The Federalist #46.

The historians' statement about arms discussions is misleading because it ignores the nature of numerous Federalist and Antifederalist Mantras, all of which emphasize the essential importance of an armed populace to prevent tyranny. It was the state declarations of rights arms provisions, which the historians misinterpreted and refused to connect with development of the Second Amendment, that protected the existence of an armed populace against government power. This concept is inherently dependent upon protection of individual rights.

Thursday, March 19, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 11

U.S. Bill of Rights Controversy Omitted in the Historians' Heller Amicus Brief

A major political dispute about the need for a federal bill of rights raged during the 1787-1788 ratification debate over the U.S. Constitution. In spite of the fact that it was this major political controversy that led directly to development of the first eight amendments from the existing state declarations of rights, the historians ignored these well documented facts and argued otherwise in the case of the Second Amendment. Remarkably, in the last two-thirds of the their brief, the subject of a bill of rights is only mentioned twice, the second being a red herring argument that will be addressed in a future post. The earlier reference is simply passing mention and involves a standing army proposal by Richard Henry Lee in the Confederation Congress as part of a "Bill of Rights" for the proposed Constitution then under consideration there. R.H. Lee's proposal began:

"It having been found from universal experience, that the most express declarations and reservations are necessary to protect the just rights and liberty of mankind from the silent, powerful and ever active conspiracy of those who govern; and it appearing to be the sense of the good people of America, by the various bills or declarations of rights whereon the government of the greater number of the states are founded, that such precautions are necessary to restrain and regulate the exercise of the great powers given to rulers. In conformity with these principles, and from respect for the public sentiment on this subject, it is submitted, -
That the new constitution proposed for the government of the United States be bottomed upon a declaration or bill of rights, clearly and precisely stating the principles upon which this social compact is founded. . ." [OSA p.27]

The historians ignored this relevant bill of rights related information in Lee's proposal and instead emphasized there was no "firearms" related provision from him. The fact is Lee also failed to include any provision relating to freedom of speech, prevention of quartering troops in time of peace, or any specifics regarding the numerous protections later found in the Fifth and Sixth Amendments. Lee's suggestions were not taken directly from the existing state declarations of rights the way later proposals for a federal bill of rights demonstrably were.

Overly focused on the lack of a "firearms" reference and inclusion of a standing army reference, the historians completely overlooked Lee's comments about the state declarations of rights - comments that directly contradicted their own previous interpretation regarding such provisions' lack of legally binding authority on state legislative power. Obviously, R. H. Lee understood that the state bills of rights "restrain and regulate" state governmental power. He also connected the concept of the power restricting state bills of rights to a new bill of rights for the proposed U.S. Constitution, something the historians abjectly failed to do anywhere in their brief. In fact the historians go out of their way to avoid any such links.

It is not as if Lee's linking the need for a federal bill of rights to the prior power limiting state bills of rights represented a rare period understanding and argument. The ratification era is replete with such references and understandings (see source collection cited above). The historians have simply decided to ignore the actual extensive period historical evidence and advance their personal opinions about the development of the Bill of Rights and its second provision instead, just as they ignored George Mason's seminal attempt for a bill of rights within the Federal Convention. The Bill of Rights history ignoring approach destroys the historical value of these fifteen academics' brief, which was supposed to insure that the U.S. Supreme Court would have "an informed understanding of the history that led to the adoption of the Second Amendment." [p.1]

Utterly worthless for its stated purpose due to lack of relevant historical information and inclusion of erroneous assertions about predecessor language, the historians' Heller brief provides a fundamentally false history of the Second Amendment that four Justices of the Supreme Court used as a foundation for their dissenting opinion in the case.

Sunday, March 15, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 10

Bill of Rights History Ignored in the Historians' Heller Amicus Brief

Diverting entirely away from the history of the U.S. Bill of Rights, fifteen historians instead pursue a history about militia powers development in the Federal Convention, disagreement over militia powers during ratification, and the preparation of an amendment to solve the militia powers dispute as the explanation for the existence of the Second Amendment. In their eyes, it is the Second Amendment that was specifically developed to solve the state/federal militia powers dispute. Their militia powers dispute based history simply ignores the actual genesis of the extensive Bill of Rights ratification era debate and starts with a discussion of the militia powers development within the 1787 Federal Convention instead.

The beginning salvo of the historians' non-rights based argument about Second Amendment development is this assertion:

Assertion #7
"The one issue addressed at the 1787 [Federal] Convention that could affect citizens' access to firearms concerned the militia." [p.14]

Fact Checking Assertion #7
On the contrary, there is only one issue addressed at the Federal Convention that would affect citizens' access to firearms and also directly relate to future development of the U.S. Bill of Rights and ALL of its first eight amendments. That issue was the demand for a bill of rights as part of the Constitution. It was initiated by George Mason, who tried to obtain a bill of rights committee and suggested a bill of rights could be developed within hours from the state declarations of rights (ALL of which contained Second Amendment predecessors). This much more relevant Bill of Rights related issue is completely ignored by the historians.

It must be kept in mind that the historians' Heller case brief supposedly relates to the history and intent of the Second Amendment, which is a U.S. Bill of Rights provision. Here is the actual beginning of demands for the Second Amendment and the other first eight provisions of the U.S. Bill of Rights (all taken from state bills of rights) from within the Federal Convention. It is the bill of rights related exchange of September 12, 1787:

"Mr. MASON . . .He wished the plan had been prefaced with a bill of rights, and would second a motion, if made for that purpose. It would give great quiet to the people, and, with the aid of the state declarations, a bill might be prepared in a few hours.
Mr. GERRY concurred in the idea, and moved for a committee to prepare a bill of rights.
Mr. MASON seconded the motion.
Mr. SHERMAN was for securing the rights of the people, where requisite. The state declarations of rights are not repealed by this Constitution, and, being in force, are sufficient . . .
Mr. MASON. The laws of the United States are to be paramount to the state bills of rights."
[OSA p.12]

Mason's attempt to obtain a bill of rights committee in the Federal Convention was defeated. Mason went on to become the most prominent Antifederalist leader promoting a bill of rights during ratification because of his notorious refusal to sign the Constitution due to lack of a bill of rights.

Something that is apparent from the exchange between Mason, Gerry, and Sherman was that all three understood the state declarations of rights as intended to secure the rights of the people against violation by the existing state governments. This historical information directly contradicts the historians' prior argument regarding that matter again and further demonstrates the erroneous foundation it is based upon.

Conclusion - Assertion #7 is Erroneous
Clearly, the militia (meaning government militia power) was not the only issue addressed at the Federal Convention in 1787 that could affect citizens' access to firearms. The historians' assertion is erroneous because they have ignored Bill of Rights related information that is much more relevant to the actual developmental history of the Second Amendment. The Second Amendment is a Bill of Rights provision and was developed directly from state declaration of rights provisions. There was an unsuccessful attempt in the Federal Convention to add a bill of rights to the Constitution based upon the state declarations of rights. That issue was the clear genesis of the major ratification era dispute over the need for a bill of rights as part of the Constitution. Later addition of the first eight amendments to the Constitution was a direct result of the ratification era bill of rights debate, which had as its object addition of the state declaration of rights protections in a federal bill of rights.

Thursday, March 12, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 9

American Bills of Rights Committed to Oblivion in the Professional Historians' Heller Amicus Brief

Retrospective on State Bill of Rights Arguments
Up to this point a third of the way through their argument, the historians have at least been discussing Bill of Rights related history, even though they were persistently in error regarding the intent of the American declarations of rights and their arms related provisions. The actual purposes of these American provisions, to limit legislative power, was a major change to and improvement on the earlier English Bill of Rights, which only limited the Crown. However, that is not how the historians portrayed American bills of rights to the Supreme Court in their Heller amicus brief. On the contrary, the historians claimed the state bills of rights were just lists of principles or common law protections with no legally binding intent.

That not one of these fifteen historians, all of whom claim familiarity with early American history, was able to grasp this point and correct the errors found in their brief regarding something so fundamental and well documented is extremely disturbing. It is especially so since this very issue was a major point that James Madison elaborated on in his Bill of Rights amendments introduction speech to Congress in 1789. Madison considered comparisons of the English Bill of Rights and American bills of rights as "inapplicable" because "there is too great a difference in the case to warrant the comparison." In what specific respect were they so different that comparison was inapplicable? In the same respect that the historians' brief argued the exact opposite of Madison's clear understanding – whether they were intended to limit legislative power or not. The historians asserted they were not so intended, but Madison's stated view was that the state declarations of rights were intended to "raise barriers against power in all forms and Departments of Government..." [OSA p.657] This direct contradiction between the views of the Bill of Rights' author and the historians' personal opinions demonstrates to what little extent their legal brief can be relied on regarding the Second Amendment's history and intent.

The numerous erroneous statements relating to this particular matter in the first third of the historians' brief must be kept in mind because, after misstating the intent of the state declarations of rights and their arms related provisions, the historians bury them all in oblivion never to be mentioned again. For the following two-thirds of the historians' brief, it is as if these clear predecessors of the Second Amendment had never even existed.

Virginia's 1788 Ratifying Convention's proposed Bill of Rights, which James Madison promised to support in order to gain ratification by that state, contains virtually all of the 1776 Virginia Declaration of rights provisions, including its exact well regulated militia language. This salient fact relating directly to the Second Amendment's development is never mentioned by the historians. Neither are the essential facts that George Mason wrote both documents and originated the demand for a Federal bill of rights in the Federal Convention. [FVRBA pp.83, 134-147] For relevant historical information on the Bill of Rights nature and development of the Second Amendment, readers, including the Justices of the U.S. Supreme Court, were forced to go elsewhere because that essential historical information is absent from the historians' Heller brief. The entirety of the relationship between the existing American state declarations of rights arms provisions and the U.S. Bill of Rights' Second Amendment is found only in the historians' introductory summary argument of their brief and consists solely in use of the term “analogous” to describe their relationship to the arms provision in the English Bill of Rights.

Historians Reverse Course - Abandon All Bill of Rights History
After having trashed the actual power limiting intent of the the state bills of rights and their arms related protections, the historians proceeded to argue that discussions supporting and opposing the new Constitution's militia powers are the history of Second Amendment development. The only problem with this approach is that the Second Amendment, along with the other first eight amendments that it is part and parcel of, does not have a militia powers amending history. Instead, it has a Bill of Rights related history not found in the brief.

The demand for a Federal bill of rights was based on desire for protections found in the state bills of rights and originated in the 1787 Federal Convention. Failure of the Federal Convention to include such a bill of rights in the proposed Constitution resulted in refusal of prominent members to sign it. These facts go completely unmentioned by the historians in a brief ostensibly about Bill of Rights history. Substituted for this essential and directly relevant information is a largely irrelevant discussion of militia powers development in the Federal Convention. The historians argue that Federalist concern for Antifederalist arguments about misuse of militia powers was the reason the Second Amendment was developed, but they fail to mention the very clear amendment, which had nothing to do with separately listed state bill of rights based amendments, that indicated "each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia. . ." [OSA p.460] Clearly, it is this non-bill of rights related militia powers amendment that related to Antifederalist concerns about Federal misuse of militia power, not the Second Amendment. A completely ignored essential fact in the brief is that the Second Amendment was developed directly from state declaration of rights language limiting state governments just as the other first eight amendments were.

In short, after destroying and permanently burying the actual predecessors of the Second Amendment, the historians divert entirely away from its relevant Bill of Rights related history and present the history of a militia powers amendment in its place as if they were one and the same. They were not the same, and the historians completely off-track “history” of the Second Amendment will be documented in future parts of this series.

Saturday, March 7, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 8

Commentary on Ignored Facts and the Historians' Heller Amicus Brief

[Updated September 26, 2011]
The treatment in the historians' Heller amicus brief of 'well regulated militia' provisions as variations of 'right to bear arms' provisions is perfectly legitimate. [p.11] What is not correct, however, is the professional historians' interpretation regarding the purpose of these provisions. The period evidence directly contradicts their assertion that these provisions do not relate to an individual right of private ownership and personal use of arms. These Second Amendment predecessors were understood as protection for a defensively effective armed civil population, a concept based upon individual rights. The best way to proceed in examining this point is to closely examine and compare the Second Amendment's earliest American bill of rights predecessor variants. These are the lead Mason Triad clauses from the Virginia and Pennsylvania Declarations of Rights that provide the most information about the fundamental concept they present.

Virginia's language from June of 1776 was:

"That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state" [OSA p.748]

Pennsylvania's language from August of 1776 was:

"That the people have a right to bear arms for the defence of themselves and the state" [OSA p.754]

Even though to modern readers these two provisions undoubtedly appear as quite different concepts at first glance, there are actually a great number of similarities between them. First, they both clearly relate to defense of the state. Second, they mention the people, indicating that it is the people's defense of the state that is being secured in some way by these state declaration of rights provisions. Third, both unquestionably relate to arms, and more specifically to arms that would be useful to the people for defense of the state.

In addition to these textually related similarities, there are a number of others of tremendous significance for a proper understanding. Both variations are state declaration of rights provisions intended to guard the people against abuse of power by the new government the people were forming. Thus, in spite of the historians' erroneous assertions to the contrary, they were understood as limits on the power of the state legislatures. Also, both provisions were leading Mason Triad clauses, an indication that they were actually related to civilian control over government raised military force. This concept is dependent on the civilian population possessing and knowing how to use their own arms. Finally, the history of these provisions directly contradicts the historians' interpretation and fully supports the period understanding of them as protections for individuals possessing and using their personally owned arms for organized defense.

It was demonstrated clearly in Posts 5 and 6 that Pennsylvania's colonial history directly contradicted the government controlled "military matters" interpretation the historians gave for Pennsylvania's “people have a right to bear arms” language. Examining Virginia's history to further clarify its declaration of rights language, we find that there is a very close parallel with that of Revolutionary era Pennsylvania. It turns out that Virginia's well regulated militia language was also related to the people associating for defense using their personally owned firearms and without government approval. In fact, Virginians began associating for defense against the British military threat approximately nine months prior to hostilities in Massachusetts. By January of 1775, defensive associations had been formed in many Virginia counties, including Fairfax and Hanover. These associations were styled independent militia companies, indicating they were independent of the government's authority.

George Mason, who later authored the very Virginia Declaration of Rights language under discussion here, used "well regulated militia" much earlier in January 1775 to describe the defensive association he had been helping to organize since September of 1774. That association involved the free men of Fairfax County taking up their own arms, forming companies, electing their own officers, and training themselves for effective mutual defense. These actions are exactly the same private arms rights based actions taken by the people of Pennsylvania in the face of British military tyranny. Pennsylvania's 'right to bear arms' and Virginia's 'well regulated militia' were, in fact, based upon the same fundamental right - the right of individuals to make use of their privately owned arms and to associate for effective mutual defense in the face of threatened government military tyranny. Both of these earliest American Second Amendment predecessor variants were a direct result of British government military action intended to force the people to comply with government edicts that were viewed as unconstitutional violations of Americans' rights.

But wait, there's more. Not only did Mason's well regulated militia usage originate in the much earlier defensive association related document, so also did his reference to its foundation in the free men being the "natural" strength of a "free" government. Even the concept Mason included in the second clause of Virginia's 1776 Mason Triad first appeared over a year earlier in the same Mason prepared document relating to the independent company or defensive association. It indicated that standing armies are ever dangerous to liberty. The development of well regulated militia language in relation to voluntary defensive associations in Virginia is explored in in Chapter 2 of The Founders' View of the Rights to Bear Arms.

Every reference in the four state declarations of rights that used Mason's 'well regulated militia' reference indicated that it was the "natural" defense of a “free” state or government (one did drop the free reference). Similarly, every one of the four bear arms provisions in the state declarations of rights indicated that "the people” have a right to bear arms for defense of the state. [For the state declarations of rights, see OSA pp.747-780 and FVRBA pp.61-77] Americans in Virginia and Pennsylvania relied upon their privately owned firearms and their ability to voluntarily associate for organized defense independent of government authority early in the American Revolution. It was these defensive activities of Virginians that led to its 'well regulated militia' reference, and it was Pennsylvanians' defensive activities that resulted in its 'people have a right to bear arms' language. Such defensive activities and the state declaration of rights provisions that resulted from them were fundamentally based upon the rights of private individuals to possess and personally use their own arms for defense.

The heart of the historians' overall argument is that the well regulated militia reference of the Second Amendment indicates it is all about government controlled militia and not related at all to private arms ownership or personal use of arms, such as in voluntary militia or defensive associations. Yet the period evidence indicates that the earliest American bill of rights related predecessors of its language, both the 'well regulated militia' AND 'the people have a right to bear arms' provisions of the state declarations of rights, were in fact based upon the use of private arms by their individual owners to cooperate for mutual defense of the state against military tyranny and without support in law. These provisions were intended to assure the future ability of the civil population to guard against and prevent tyranny from government raised military force by placing protection for an armed populace in constitutional level law as part of state declarations of rights. The above relevant period bill of rights related information directly contradicts the historians' Heller brief argument.

Wednesday, March 4, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 7

The Historians' Heller Amicus Brief and Ignored Facts Examined

The professional historians brief mentioned three "statements, either bundled together in one article or linked in successive articles of the state declarations of rights" that related to "a well regulated militia, the danger of standing armies, and the importance of maintaining civilian control over the military." [p.10] Only mentioning these three-part bundles in passing, the historians misinterpreted Pennsylvania's version (see previous post) and later used that misinterpretation to divert away from relevant bill of rights history to an entirely irrelevant military history for the Second Amendment. It is essential for a proper understanding of the Second Amendment's bill of rights predecessors found in every state declaration of rights that these three-part statements be further examined.

Mason Triads and Second Amendment Predecessors
The fact is that every one of the eight state declarations of rights extant when the U.S. Bill of Rights was written included a Second Amendment predecessor. These arms related provisions were always the leading clause in a three-part structure, the second part of which indicated standing armies were dangerous to liberty. The third part invariably declared that the military would be subordinate to and governed by the civil power.

These tri-part structures have been named Mason Triads in The Founders' View of the Right to Bear Arms, which examines their development in Chapter 4. The first of these triads was written by George Mason as Article XIII of Virginia's Declaration of Rights of June 12, 1776. This original version of the Mason Triad, which begins with the earliest American bill of rights related predecessor of the Second Amendment's first clause, declared:

"That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power." [OSA pp.748-749]

Seven additional states subsequently adopted declarations of rights and each uniformly adopted a Mason Triad, some with variation of the Second Amendment related leading part. Three states copied George Mason's well regulated militia reference, generally shortening the provision by dropping the arms reference and the definition that the body of the people composed a well regulated militia. These four well regulated militia references were all Revolutionary era documents. During the American Revolution it was obvious to everyone exactly who composed a well regulated militia - the body of the people with their own arms.

Four other states, beginning with Pennsylvania's own Article XIII on September 11, 1776, replaced the well regulated militia language with a declaration that the people have a right to bear arms for defense as the lead Mason Triad language. Pennsylvania's Mason Triad, which is the earliest of this version and the original American bill of rights related predecessor of the Second Amendment's second clause, stated:

"That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power." [OSA p.754]

Three subsequent state declarations of rights copied Pennsylvania's Second Amendment related language with each dropping the reference to "defence of themselves" and varying the defense of the state language slightly. Massachusetts also added language regarding the people having a right to keep arms. This was undoubtedly because the British, who were in military control of Boston, had disarmed the townspeople of their personal arms after the Battles of Lexington and Concord and had been involved in seizing powder in numerous locations even prior to then. These four "people have a right to bear arms" provisions were also all Revolutionary era documents. During the American Revolution it was obvious to everyone that they had a right to take up their own arms for defense against the threat of government tyranny imposed by military force.

In the previous three posts it has been demonstrated, contrary to the professional historians' claims, that Pennsylvania's “people have a right to bear arms” language was intended to protect private ownership and personal use of arms, both for defense of themselves AND for defense of the state. Pennsylvania's language taken in context, its colonial history, and its state government limiting Mason Triad all indicated that the historians' interpretation was completely wrong. Additionally, the historians had entirely misconstrued the purpose for state declarations of rights, erroneously claiming that they were not legally binding and were merely lists of principles and common law rights, which would have allowed the state governments to alter them at will.

As noted in the previous post, the historians treated right to bear arms protections as equivalent to well regulated militia provisions. Logically, if the historians are correct about them being variations of each other, it means they are incorrect about their interpretation of well regulated militia references in bills of rights because they are wrong about the meaning of right to bear arms references such as Pennsylvania's. Think about this. The validity of their treatment and its effect on their interpretation of Second Amendment predecessors will be examined in detail in the next post.

Tuesday, March 3, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 6

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

The following is Article XIII from Pennsylvania's 1776 Declaration of Rights:

"XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power." [OSA p.754]

In further support of their opinion that the above language regarding the people's right to bear arms did not relate to the right of private ownership or personal use of arms, the historians rely on the two subsequent clauses from the declaration of rights and state that:

Assertions #6
"the opening clause of Article XIII immediately preceded two other clauses reiterating the usual condemnation of standing armies and endorsement of civilian supremacy. The Article as a whole is thus concerned with military matters." [p.11]

Fact Checking Assertion #6
On the contrary, Declaration of Rights Article XIII as a whole is concerned with limiting government power and assuring civil control of the government's military forces.

Immediately before this statement, the historians indicated that there were “well regulated militia” references in the state declarations of rights and analyzed variations among them. In their analysis, they treated “right to bear arms” provisions, including the above Pennsylvania “people have a right to bear arms” language, as simply variations on the well regulated militia references found in four other state declarations of rights. Thus, to the historians, Pennsylvania's right to bear arms language was merely a well regulated militia variant, and it related to military matters under government control.

A revealing point about their approach is that the historians never once mentioned that the four “bear arms” provisions among the eight state declarations of rights all began with exactly the same language indicating that it is “the people” who have a right to bear arms for defense. They always identified these provisions as right to bear arms provisions, and they interpreted them as if they actually stated that the people composing a government regulated militia have a right to bear arms.

The historians have used “military matters” here to mean government controlled military matters, just as they previously used “no militia at all” (see Part 5) to mean no government controlled militia at all. Their attempt here is to use the appellation “military matters” to magically transform power limiting provisions of the state declaration of rights into provisions describing government control over anything that relates to the military.

Exactly what military matters do these three clauses related to? The second clause of Article XIII warns that standing armies in time of peace are dangerous to liberty and indicates the government ought not keep them up. This is a clear reference to military matters over which the government's power is being restricted by the people who are establishing the new government. Standing armies are dangerous to liberty – the liberty of the people – and the government ought not to keep them up because the people wish to live in liberty and not be oppressed by a standing army. That is why this particular power restricting provision is included in Pennsylvania's Declaration of Rights.

The last clause mentions that the military will be subordinate to and governed by the “civil power.” Exactly who are the military being mentioned in that clause? Any standing army or troops certainly would qualify as the military. Any militia called out by the government and in service would qualify as the military as well. But what the historians are suggesting is that the people whose right to bear arms is protected in the first clause should be considered as the military as well. Are the people referred to in the first clause the military, or are the people whose right to bear arms is protected the civilians?

The historians have tied all of the bear arms provisions of the state declarations of rights to the militia. Militia is a term never defined by the historians, but one that they implicitly accept as entirely military in nature. Such a view is far, far from accurate. The militia, regardless of how extensive or restricted a body they are viewed as, were always understood to be civilians who functioned as soldiers only when called out for service. The people reference in the first clause is not to soldiers in service, but to all of Pennsylvania's civilians. It is not a military reference, and its only relationship to military matters under government control is that the civilians whose right to bear arms is protected in the first clause are the “civil power” mentioned in the last clause.

Conclusion - Assertion #6 is Erroneous
The purpose of the clauses in Article XIII are the direct opposite of what the historians have attributed to them. These clauses do not deal with military matters under complete government control but instead relate to restrictions on government power. The people of Pennsylvania, who authorized its state government and limited that government by the Declaration of Rights, are not only the civilians who have the stated right to bear arms for defense but also those who constitute the civil power that the military is subordinate to and governed by.

Sunday, March 1, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 5

Ignored Facts, Unfounded Assertions, and Pennsylvania's History in the Historians' Heller Amicus Brief
Updated September 10, 2010

Equating the right to bear arms and well regulated militia references found in state declarations of rights, the historians treated 'the people have a right to bear arms' provisions found in four state declarations of rights simply as variations on the 'well regulated militia' references found in the other four. In their view, all those arms related provisions were intended to allow for robust state regulation of arms because they were not a limit on legislative authority.

The historians argued that the first eight state declarations of rights were not intended to limit legislative authority. Their assertions on that matter have been shown to be erroneous due to direct conflict with relevant historical sources. The arms related protections in those state declarations of rights therefore cannot be taken a priori as subject to state legislative control as argued in the historians' brief.

As demonstrated in the previous post in this series (#4, below), Pennsylvania's Declaration of Rights provision that "the people have a right to bear arms for defence of themselves and the state" contradicts the historians' general assertion that none of the states' arms provisions related to individual rights for private purposes. Aware that Pennsylvania's arms provision "appears open to a broader interpretation" that contradicts their position, the historians have pursued two additional arguments in further support of their opinions, first, by reliance on two other closely related Declaration of Rights clauses and second, by reference to the colony's history.

Regarding that history, their brief states:

Assertion #5
"Pennsylvania had no militia at all during the two decades preceding independence. Unlike most colonies, its legal assembly continued to meet into the spring of 1776, but without mobilizing a provincial militia against the British threat. As a result, extra-legal committees arose in Philadelphia that were strongly supported by the province's voluntary militia units." [pp.11-12, emphasis added]

Fact Checking Assertion #5
As noted in Part 3, the historians' brief is far from devoid of inconsistency, and the above statements constitute another case in point. Exactly how is it possible for there to be voluntary militia in Pennsylvania during the period under discussion if there was no militia at all during that period? This clear inconsistency is another piece of evidence that there is something fundamentally wrong with the professional historians' brief regarding Second Amendment history.

The historians obviously meant that there was no legally established militia at all in Pennsylvania during that period, a distinction that removes the inconsistency of their statements and is historically accurate. Existence of two different kinds of militia - that formed by law and that formed by armed individuals voluntarily associating for mutual defense without any law – indicates the historians are fully aware that effective militia units established without legal support indeed existed prior to independence. Thus, their argument that Pennsylvania's “people have a right to bear arms for defence” language relates to legally established militia and was intended to allow for robust regulation of private firearms and complete regulation of all militia related arms is in error. Since the historians are incorrect about the fundamental purposes of state declarations of rights, why, we might ask, does Pennsylvania's right to bear arms language not actually apply to the voluntary militia they mentioned? This interpretation would actually fit the constitutionally stated purpose for Pennsylvania's Declaration of rights – to prevent violation of its protections on any pretense whatever by government.

Historical evidence from the period under discussion indicates that an effective militia could be formed just as well by voluntary association or private agreement of armed individuals without legal authority as could be accomplished by law. [FVRBA p.39] There certainly were such voluntary militia in Pennsylvania. They were normally referred to as associators partly because colonial Pennsylvania never had a militia law like those of the other colonies. Militia was a term much less used there than elsewhere in America, although associators, who spontaneously self-embodied for defense only during times of emergency, were sometimes referred to as militia in colonial Pennsylvania.

Pennsylvania's government hired troops on a few occasions. Other than that, however, lack of compulsory militia laws meant that all other organized defense within the colony was accomplished by individuals capable of armed self-defense taking up their privately owned arms and associating together for mutual defense. Such defensive self-embodying associations were formed on numerous occasions whenever threats originated and defense was necessary.

For a period of only one year starting in late 1755, a defensive association was established and authorized by law in Pennsylvania. However, even that defensive law was entirely voluntary and it was disallowed by the British for that very reason. The law did not required anyone to engage in defense related duties and did not require anyone to possess arms. Thus, there was never any duty of Pennsylvanians to bear arms controlled by government in colonial Pennsylvania's entire 90+ year history nor any requirement to possess arms for such a duty. These historical facts bring the assertions in the historians' brief into serious question again.

Pennsylvanians possessed a variety of arms that they used for hunting, target shooting, killing dangerous and crop destroying animals, self-defense, defense of their family and home, and defense of their community. Associating for organized mutual defense was accomplished by neighbors assembling with their personally owned firearms, forming companies, electing their own officers, and training themselves as an effective defensive military force – all without sanction of law. All of the firearms Pennsylvanians owned, which clearly included those normally used for military purposes, were useful for the defensive purposes later mentioned in the state's Declaration of Rights. In short, the people, meaning all the individuals residing in the colony, exercised unrestricted rights to possess arms and to use those arms for defensive purposes in the colony. For a history of such defensive associations in colonial Pennsylvania, see The Founders' View of the Right to Bear Arms, Chapter I.

The foregoing facts about Pennsylvania colonial history indicate why the patriots of that state used "the people have a right to bear arms for the defence of themselves and the state" in their 1776 Declaration of Rights. The drafters were simply stating what had always been the case previously, and more specifically, exactly what the case was at the very moment their Declaration of Rights was being established. For over a year prior to that language being written, the people of Pennsylvania had been associated with their own arms “for the defense of their lives, liberty and property” against the British without any support in law from Pennsylvania's government. This defensive activity directed against British government troops was entirely dependent on the people possessing their own firearms and ammunition in the first place. Thus, this right was fundamentally based upon individuals being able to protect themselves with their own arms and to associate for mutual defense using their own arms.

Completely unmentioned in the historians' brief and the secondary source they cite in support of their argument is the fact that power to make use of Pennsylvania's freemen and their sons for defensive purposes was specifically given to the new state government in the body of the state's constitution. That omission by the historians leads one to conclude that the declaration of rights' arms provision was intended for the same purpose. However, delegation of power to the government over the men of the state for defensive purposes in the body of the constitution and protection of the people's right to bear arms for defense of the state against violation by the state government have separate, distinct, and contrasting purposes. The constitution authorizes legitimate government military powers, while the declaration of rights limits all powers by preventing violation of the stated fundamental right by the state government.

Conclusion - Assertion #5 is Errounous
Pennsylvania's colonial history directly contradicts the historians' argument. Historical evidence indicates there was widespread individual ownership of arms in colonial Pennsylvania, something that the historians recognize. That history also indicates that on numerous occasions those arms were made use of by their owners for organized defense at their owners' discretion whenever danger threatened and without authorization under law, something that the historians completely ignore. It is clearly this individual rights based defensive activity that the Pennsylvania Declaration of Rights referred to when it stated that “the people have a right to bear arms” for defense of the state.

As can be seen, there is a simple reason why the historians' statements regarding bill of rights arms provisions are erroneous and the relevant historical facts directly contradict them. They are wrong. Their interpretation of the Second Amendment is without historical foundation.

[Analysis of the historians' Pennsylvania related argument relying on two other declaration of rights clauses will appear in the next post.]