Historians Try to Sell Brooklyn London Bridge to U.S. Supreme Court - Part 5

More Error and Omission in the Historians' McDonald Amicus Brief

[updated January 26, 2010]
As documented in part 4 of this series, Americans understood the arms provision found in the English Bill of Rights to be protection for a natural right. A "very great Majority" "of the Freeholders and other Inhabitants of the Town of Boston" voted it as "the opinion of this Town" that the arms provision of the English Bill of Rights "is founded in Nature". Also, Samuel Adams, in defending the vote by Boston's inhabitants, stated that the English arms provision related to a "natural Right which the People have reserved to themselves, confirmed by the Bill of Rights, to keep Arms for their own Defence".

Boston's vote was related to that American understanding of a natural right to "keep" arms, which was bolstered by the English Bill of Rights and a militia law of Massachusetts requiring every man and householder to to obtain and always be provided with arms and ammunition. The response from Parliament to the inhabitants' vote indicates a desire on the part of the British that Americans not always possess arms and ammunition.

The second and third parts of this series provided documentation that the historians' claim "[h]istorical records show that the Second Amendment was unrelated to any seizure of colonists’ arms by British troops" was erroneous.

The historians assertion immediately following that claim, which is examined presently, stated:

"Not a single document – no declaration, petition, or piece of correspondence, public or private – references any claim that the British violated the colonists’ right to “have arms.” [p.36]

This statement is not only false, it is utterly preposterous. Examine the following excerpt from the Declaration of the Continental Congress, December 6, 1775:

"We condemn, and, with arms in our hands - a resource which Freemen will never part with - we oppose the claim and exercise of unconstitutional powers, to which neither the Crown or Parliament were ever entitled. By the British Constitution, our best inheritance, rights, as well as duties, descend upon us: We cannot violate the latter by defending the former: We should act in diametrical opposition to both, if we permitted the claims of the British Parliament to be established, and the measures pursued in consequence of those claims to be carried into execution among us. Our sagacious ancestors provided mounds against the inundation of tyranny and lawless power on one side, as well as against that of faction and licentiousness on the other. On which side has the breach been made?" [Delegates, II, 449; see FVRBA, p.59-60]

This is a complaint about violation by the British of all the "rights" protected "[b]y the British Constitution". Among those "rights" that Americans understood to "descend upon" themselves from "the British Constitution" was protection for the natural right of having arms. The fact that Americans had to defend all of those "rights" against claims of unlimited authority and British actions that repeatedly involved disarming Americans, eventually spawning the defensive hostilities mentioned above, directly contradicts the historians' view. Congress' earlier Declaration of the Causes and Necessity of Taking Up Arms specified that the seizure of arms from Boston's inhabitants was one of the causes of hostilities. [See Part 3] Those hostilities were engaged in to defend Americans' rights, one of which was to "have arms".

Americans referred to the provisions of the English Bill of Rights as "natural Rights", even though the British understanding described in Blackstone was of protections against the Crown subject to Parliamentary statute. This British understanding of legislative supremacy was also the basis of their claimed right to bind Americans in all cases whatsoever. The British understood the "have arms" provision to be one exercisable only under authority of government ("as allowed by law"). Americans understood the English Bill of Rights "have arms" protection as a natural right simply being protected in the English document.

The historians brief attempts to interpret an American Bill of Rights provision based on the British understanding of the English Bill of Rights. This is a major flaw that underlies everything presented in the brief because Americans rejected British authority and the British form of government. In their place, Americans established new state governments with constitutions containing bills of rights protecting the people against government violation of their natural rights. The historians never mention the state bills of rights, which are American revolutionary era inventions that were intended to "raise barriers against power in all forms and departments of Government", as Madison stated in 1789. [OSA, p.657]