Contradiction and Error in the Pennsylvania History McDonald Amicus from Professional Historians
In part 4 of the Franklin Bridge series, a second, shorter statement of George Mason that appeared in the middle of the quoted portion of the historians' brief was set aside for later examination here because it was diversionary in nature. The quoted portion is taken from the next to last sentence of Mason's June 14 Virginia Ratifying Convention argument in support of an amendment that would assure the states power over the militia.
"The solution Mason saw was that “divine Providence has given every individual – the means of self-defense” by joining a militia to combat a standing army." [p.25]
Here is Mason's entire statement showing that the quoted portion of Mason's statement was actually the commonly understood analogue removed from an analogy he was making:
"If the [militia] clause [of the Constitution] stands as it is now, it will take from the state legislatures what divine Providence has given to every individual -- the means of self-defence." [The Origin of the Second Amendment, p.402]
The historians present the Mason statement as if it was a "solution" for the problem he discussed in the Virginia Convention militia powers debate. In reality, as seen in part 4, Mason specified the solution as a militia powers amendment, not the Second Amendment predecessor, and the historians completely ignored this fact. They used Mason's analogue as a diversion away from the actual militia powers amendment solution.
Mason understood that, under the new Constitution, the states could be deprived of their means of defense, which was power over the militia, due to the federal government's paramount powers on that subject. To make his argument more clear, he presented a commonly understood point, that every individual possessed the means of self-defense, a reference to the fact that every individual possessed arms for self-defense. Such an analogue would make no sense whatever unless it was widely understood and factually accurate. The historians complete misrepresentation of this Mason quote destroyed Mason's analogy by erroneously making the analogue dependent upon militia membership, something Mason neither stated, implied, nor intended based upon his complete statement.
Turning to internal contradictions, the above Mason quote conflicts with the historians' views. They argue that period discussion was all about the militia and the necessity of the states being guaranteed power over the militia, not about private ownership of arms and related rights. Yet they provide period evidence that contradicts their view. Here are three of their militia-centric statements, all from a single paragraph, which conflict with historical information presented elsewhere in their own brief:
"While the Second Amendment debates focused on the militia, they virtually ignored any right of individuals to defend themselves personally with firearms. . . . The debate was a discussion concerning the militia, nowhere in it is there the slightest hint about a private or individual right to own a weapon. This should not surprise us, for “[i]n all the discussion and debates” over the Second Amendment, “from the Revolution to the eve of the Civil War, there is precious little evidence that advocates of local control of the militia showed an equal or even a secondary concern for gun ownership as a personal right."" [pp.27-28]
Mason's quote, which appeared two pages earlier in the brief and was examined above, conflicts with the historians' opening statement. Mason described the fact that "every individual --[has] the means of self-defence", a clear reference to "every individual" having arms for self-defense.
The historians' statements are contradicted by their quote of Tench Coxe, which appears on the previous page of their brief:
"the people are confirmed in the next article in their right to keep and bear their private arms.” [p.26]
Obviously, if the people are confirmed "in their right to keep and bear their private arms" [OSA, p.671] as Coxe described, then the historians' denial that the debate was about "gun ownership as a personal right" is in direct conflict with this period fact.
Coxe's statement related to the purpose of James Madison's Second Amendment predecessor, which stated:
"Fourthly, that in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit:
. . . .
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country . . ." [OSA, pp.654-655]
Understanding the context of Madison's Second Amendment predecessor is essential for properly understanding Coxe's explanation. It was the fourth of ten articles to be inserted at Madison's specified location in the Constitution. The other nine articles were protections later included in the First, Third, Fourth, Fifth, Sixth, Eight, and Ninth Amendments, all of which relate to private rights. The order of the protections later found in the First, Second, and Third Amendments is exactly the same as originally proposed by Madison. The location specified by Madison for insertion is the only one in the Constitution where individual rights are protected against the federal government. [OSA, p.654-656] Thus, it is clear that Madison treated the Second Amendment predecessor as a typical bill of rights protection for individual rights. This makes perfect sense because he developed these protections from the Virginia proposal for a Bill of Rights, which quoted language taken directly from existing state bills of rights. Coxe's statement describing a right of the people to keep and bear their own "private arms" directly conflicts with the historians' view.
There is also a conflict between the historians' three statements on pp.27-28 of the brief and the argument they present on its following page:
"This suggests that Madison and Congress knew about the "Reasons of Dissent [of the Pennsylvania Minority]," read them, and treated them like a menu, selecting some options and rejecting others, including the individual-oriented gun-right provisions. . . . But Congress decided not to recognize the individual-oriented gun rights in the Dissent, including the right not to be disarmed except in exceptional circumstances and the right to hunt." [pp.28, 29]
Here, the historians state that the arms provision of the Pennsylvania Minority (quoted directly below) protected "individual-oriented gun-right provisions", exactly what they deny was a topic of period Second Amendment related discussion on the previous page of their brief, specifically, the "individual right to own a weapon" and "gun ownership as a personal right." Exactly how individual gun ownership as a personal right gets proposed as a constitutional amendment without any discussion whatsoever is problematic on its face.
This is the Pennsylvania Minority's Second Amendment related proposal:
"That the people have a right to bear arms for the defence 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". [OSA, p.160]
Not only are the historians' arguments repeatedly contradicted by period sources discussed or quoted in their own brief, but the historical facts prove they are entirely incorrect in their view that period Second Amendment debate was always about the militia and not about gun ownership as a personal right. The exact opposite is the fact. Protection for the people's right to keep arms was offered by Antifederalists in every state ratifying convention where bill of rights provisions were proposed. These included Pennsylvania [OSA, p.151], Massachusetts [OSA, p.260], New Hampshire [OSA, p.446], Virginia [OSA, p.459], New York [OSA, p.481], North Carolina [OSA, p.505], and Rhode Island [OSA, p.735]. Each of these conventions voted on a bill of rights related provision either preventing disarming of the people or protecting the people's right to keep arms, which are equivalent provisions in different words. In each case, these provisions were associated with clearly bill of rights related provisions. [see citations above]
And directly contrary to the mixed up views of these professional historians, in only three of the ratifying conventions did the Antifederalists propose a militia powers amendment, Pennsylvania [OSA, p.151], Virginia [OSA, p.460], and North Carolina [OSA, p.507]. In other words, the historians have everything backwards. The right to keep arms was included in all seven of the ratifying conventions where bill of rights amendments were discussed and proposed, whereas militia powers amendments were proposed in only three conventions. Seven is a lot more than three. The private right to keep arms was actually proposed as an amendment to the Constitution more than twice as often as an alteration of the militia powers. This indicates that the historians continually overlook something that is essential for understanding the Second Amendment. What they have been constantly ignoring is the history of the Second Amendment as a bill of rights provision. It is the extensive and divisive ratification era bill of rights debate they have ignored that directly resulted in development and proposal of Second Amendment related protection by Antifederalists. Professional historians have been prime movers in ripping the Second Amendment out of its actual Bill of Rights history and pasting it into a militia powers debate history that is unrelated.
Rather than the Second Amendment debate being all about the militia, with nary a mention of individual rights relating to private arms ownership, as insisted upon by the historians, the relevant debate was all about adding a Bill of Rights to the Constitution protecting the individual rights already found in the existing state bills of rights, every one of which included a Second Amendment related provision. Every convention voting on bill of rights amendments dealt with the right to keep arms, while less than half of those conventions voted on a militia powers amendment. These facts emphasize the point that the professional historian amici supporting gun control in the McDonald Supreme Court case are not familiar with the period historical sources most relevant for understanding the Second Amendment. This is the primary reason why their opinions are so often in direct conflict with the Founders' views and period facts. The best that can be said for the historians' Second Amendment claims is that they are completely unreliable.
Sunday, February 28, 2010
Friday, February 19, 2010
Error as Foundation for the Mother of All Ideological Divides
Dissenting Heller Justices Bought the Arlington Memorial Bridge from Professional Historians
[Updated February 26, 2010]
This post links Professor Paul Finkelman's use of a Virginia Ratifying Convention disarming argument by George Mason, examined in the previous post, with his use of a different Mason disarming argument from the same source presented in the professional historians' Heller brief supporting Washington DC's gun control laws. The fact is that Professor Finkelman and his associates, who filed one of eight historically oriented briefs in Heller, fundamentally influenced Justice Stevens' dissent in that case. This post emphasizes the erroneous nature of the conflationary Mason Virginia Convention arguments in Professor Finkelman's McDonald and earlier Heller Supreme Court briefs, and presents additional historical information documenting the error. It also demonstrates that a Virginia militia powers amendment/Second Amendment conflation error has always been a major historical foundation of gun control supporters' arguments.
Professor Finkelman, one of four McDonald Pennsylvania history amici, was also one of the fifteen academics involved with the professional historians' amicus brief in the earlier Heller case. That earlier brief used a George Mason disarming argument from the Virginia Convention as the link between its militia powers dispute and the Second Amendment. However, the particular Mason argument presented there appeared fourteen sentences earlier in Mason's speech than the one presented in the McDonald Pennsylvania brief. [The Origin of the Second Amendment, p.401] Every erroneous aspect of the second Mason "'disarming" argument demonstrated in the previous post also applies to Professor Finkelman's usage of Mason's first "disarming" argument in the earlier historians' Heller brief as well.
Eight briefs presenting historical arguments supporting Washington DC's gun control laws were filed in the Heller case, and every one of them contained a 1788 Virginia Convention militia powers argument link to the Second Amendment [see list at the end of this paragraph]. Each of them was in error for the same reason, conflating non-related militia powers and bill of rights arguments and amendments. In those Heller historical briefs, Mason's first "disarming" argument is mentioned or quoted as the specific link to the Second Amendment, with one relying on Mason's related "various ways of destroying the militia" statement instead. By repeating this erroneous argument in their own amicus, the fifteen professional historians, including Professor Finkelman, gave their imprimatur to the erroneous Virginia Convention related claims in the other seven Heller historical briefs. This mass of historical misinformation backed up by a substantial group of professional historians naturally had an adverse affect on Heller because this is the completely erroneous view that was incorporated as the foundation of Justice Stevens' militia-centric dissent. He quoted the first Mason disarming statement, making it the pivotal link between his entirely militia powers related history and the Second Amendment. [Justice Stevens' Heller dissent, p.20] Justice Stevens' historically oriented dissent is entirely erroneous as a result. [List of briefs presenting erroneous argument of conflation: Petitioner's Brief p.24, Major American Cities p.17, Brady Center p.21, Am. Jewish Committee p.17, Professors of History, p.20, Chicago p.11, NY HI etal Brief pp.5-6, Petitioner's Reply Brief p.6. Briefs available here.]
An article by constitutional scholar David Hardy appeared last month in the online Cardozo Law Review, DeNovo, entitled, Ducking the Bullet: District of Columbia v. Heller and the Stevens Dissent, which specifically addresses errors of Justice Stevens. In addition to the overall excellent presentation, Mr. Hardy does a superlative job presenting the historical details of Antifederalist actions in the Virginia Ratifying Convention proving that the Second Amendment could not be the result of militia powers debate there. He includes even more details of Virginia history than presented in the previous Franklin Bridge post. Relying on a time-line of Antifederalist actions within the convention and the existence of an early partial list of non-bill of rights amendments lacking a militia powers provision, he proves that the militia powers arguments and the amendment resulting from them appeared later and were unrelated to the earlier Second Amendment provision, which was part of a completed bill of rights formed early in the convention. [pp.76-77] David Hardy's article is a must read for those interested in Second Amendment history.
Another essential piece of historical evidence exists that backs up the facts in David Hardy's article, as well as the points in part 4 of the Franklin Bridge series, about the erroneous nature of arguments linking militia powers dispute to the Second Amendment in the 1788 Virginia Ratifying Convention. George Mason, chairman of the Antifederalist amendments committee, sent a letter to New York Antifederalists early in the convention on June 9th. Included with the letter was the complete proposed Bill of Rights, which included the two-clause Second Amendment predecessor, and the partial list of "other" non-bill of rights amendments, which did not include the later developed militia powers proposal identified in Mr. Hardy's article. Mason clearly indicated in his letter that proposed amendments of the Constitution's militia powers had yet to be addressed by the amendments committee. [The Founders' View of the Right to Bear Arms, pp.133-134] Thus, the author of all proposed amendments from Virginia, both the bill of rights as well as the "other" amendments, did not view the Second Amendment predecessor as an amendment of the Article 1, Section 8 militia powers. This is directly in conflict with the beliefs of gun control supporters, including the professional historians who have been re-writing American history to back up their mistaken views.
There are at least three separate historical facts from the Virginia Ratifying Convention conclusively demonstrating the original proposal of the two-clause Second Amendment progenitor from Virginia was not related to period state militia powers arguments, and that gun control supporters' claims to the contrary are completely erroneous. First, the Virginia Convention militia powers link to the Second Amendment erroneously conflates it with an entirely different amendment specifically relating to militia powers, as documented in part 4 of the Franklin Bridge series. Second, the time-line evidence from the convention developed by David Hardy indicates development of the erroneously linked subjects occurred at different times and were for substantially different purposes. Finally, Mason's letter accompanying the bill of rights and partial amendments list on June 9, 1788 conclusively confirms the time-line evidence and indicates that no militia powers amendment had yet been discussed by the amendments committee at the time the bill of rights containing the Second Amendment predecessor had already been developed, completed, and sent to New York.
A Virginia militia powers amendment/Second Amendment conflation error is the major historical foundation of gun control supporters' arguments since the mid-1960's. The following list of seven law review and one Journal of American History articles going back in time to 1966 all use an erroneous Virginia Ratifying Convention argument conflating the militia powers dispute and the Second Amendment. The earliest two do not directly use either of Mason's disarming statements. However, starting with the Weatherup 1975 article, a Mason disarming statement or quote became the norm for making this erroneous conflation. The latest two articles, from the 2000 Chicago-Kent Law Review Symposium on the Second Amendment, were intended not only to to influence the U.S. Fifth Circuit Court of Appeals' U.S. vs Emerson decision, but those of any subsequent federal court cases as well. Fortunately, five Supreme Court Justices were not in a bridge buying frame of mind in Heller, nor were two Fifth Circuit judges in Emerson, preferring the actual historical facts found in period sources to stories about history from professional hiStory tellers.
Law Review Articles Containing a 1788 Virginia Convention
Militia Powers/Second Amendment Conflation Error
[Updated February 26, 2010]
This post links Professor Paul Finkelman's use of a Virginia Ratifying Convention disarming argument by George Mason, examined in the previous post, with his use of a different Mason disarming argument from the same source presented in the professional historians' Heller brief supporting Washington DC's gun control laws. The fact is that Professor Finkelman and his associates, who filed one of eight historically oriented briefs in Heller, fundamentally influenced Justice Stevens' dissent in that case. This post emphasizes the erroneous nature of the conflationary Mason Virginia Convention arguments in Professor Finkelman's McDonald and earlier Heller Supreme Court briefs, and presents additional historical information documenting the error. It also demonstrates that a Virginia militia powers amendment/Second Amendment conflation error has always been a major historical foundation of gun control supporters' arguments.
Professor Finkelman, one of four McDonald Pennsylvania history amici, was also one of the fifteen academics involved with the professional historians' amicus brief in the earlier Heller case. That earlier brief used a George Mason disarming argument from the Virginia Convention as the link between its militia powers dispute and the Second Amendment. However, the particular Mason argument presented there appeared fourteen sentences earlier in Mason's speech than the one presented in the McDonald Pennsylvania brief. [The Origin of the Second Amendment, p.401] Every erroneous aspect of the second Mason "'disarming" argument demonstrated in the previous post also applies to Professor Finkelman's usage of Mason's first "disarming" argument in the earlier historians' Heller brief as well.
Eight briefs presenting historical arguments supporting Washington DC's gun control laws were filed in the Heller case, and every one of them contained a 1788 Virginia Convention militia powers argument link to the Second Amendment [see list at the end of this paragraph]. Each of them was in error for the same reason, conflating non-related militia powers and bill of rights arguments and amendments. In those Heller historical briefs, Mason's first "disarming" argument is mentioned or quoted as the specific link to the Second Amendment, with one relying on Mason's related "various ways of destroying the militia" statement instead. By repeating this erroneous argument in their own amicus, the fifteen professional historians, including Professor Finkelman, gave their imprimatur to the erroneous Virginia Convention related claims in the other seven Heller historical briefs. This mass of historical misinformation backed up by a substantial group of professional historians naturally had an adverse affect on Heller because this is the completely erroneous view that was incorporated as the foundation of Justice Stevens' militia-centric dissent. He quoted the first Mason disarming statement, making it the pivotal link between his entirely militia powers related history and the Second Amendment. [Justice Stevens' Heller dissent, p.20] Justice Stevens' historically oriented dissent is entirely erroneous as a result. [List of briefs presenting erroneous argument of conflation: Petitioner's Brief p.24, Major American Cities p.17, Brady Center p.21, Am. Jewish Committee p.17, Professors of History, p.20, Chicago p.11, NY HI etal Brief pp.5-6, Petitioner's Reply Brief p.6. Briefs available here.]
An article by constitutional scholar David Hardy appeared last month in the online Cardozo Law Review, DeNovo, entitled, Ducking the Bullet: District of Columbia v. Heller and the Stevens Dissent, which specifically addresses errors of Justice Stevens. In addition to the overall excellent presentation, Mr. Hardy does a superlative job presenting the historical details of Antifederalist actions in the Virginia Ratifying Convention proving that the Second Amendment could not be the result of militia powers debate there. He includes even more details of Virginia history than presented in the previous Franklin Bridge post. Relying on a time-line of Antifederalist actions within the convention and the existence of an early partial list of non-bill of rights amendments lacking a militia powers provision, he proves that the militia powers arguments and the amendment resulting from them appeared later and were unrelated to the earlier Second Amendment provision, which was part of a completed bill of rights formed early in the convention. [pp.76-77] David Hardy's article is a must read for those interested in Second Amendment history.
Another essential piece of historical evidence exists that backs up the facts in David Hardy's article, as well as the points in part 4 of the Franklin Bridge series, about the erroneous nature of arguments linking militia powers dispute to the Second Amendment in the 1788 Virginia Ratifying Convention. George Mason, chairman of the Antifederalist amendments committee, sent a letter to New York Antifederalists early in the convention on June 9th. Included with the letter was the complete proposed Bill of Rights, which included the two-clause Second Amendment predecessor, and the partial list of "other" non-bill of rights amendments, which did not include the later developed militia powers proposal identified in Mr. Hardy's article. Mason clearly indicated in his letter that proposed amendments of the Constitution's militia powers had yet to be addressed by the amendments committee. [The Founders' View of the Right to Bear Arms, pp.133-134] Thus, the author of all proposed amendments from Virginia, both the bill of rights as well as the "other" amendments, did not view the Second Amendment predecessor as an amendment of the Article 1, Section 8 militia powers. This is directly in conflict with the beliefs of gun control supporters, including the professional historians who have been re-writing American history to back up their mistaken views.
There are at least three separate historical facts from the Virginia Ratifying Convention conclusively demonstrating the original proposal of the two-clause Second Amendment progenitor from Virginia was not related to period state militia powers arguments, and that gun control supporters' claims to the contrary are completely erroneous. First, the Virginia Convention militia powers link to the Second Amendment erroneously conflates it with an entirely different amendment specifically relating to militia powers, as documented in part 4 of the Franklin Bridge series. Second, the time-line evidence from the convention developed by David Hardy indicates development of the erroneously linked subjects occurred at different times and were for substantially different purposes. Finally, Mason's letter accompanying the bill of rights and partial amendments list on June 9, 1788 conclusively confirms the time-line evidence and indicates that no militia powers amendment had yet been discussed by the amendments committee at the time the bill of rights containing the Second Amendment predecessor had already been developed, completed, and sent to New York.
A Virginia militia powers amendment/Second Amendment conflation error is the major historical foundation of gun control supporters' arguments since the mid-1960's. The following list of seven law review and one Journal of American History articles going back in time to 1966 all use an erroneous Virginia Ratifying Convention argument conflating the militia powers dispute and the Second Amendment. The earliest two do not directly use either of Mason's disarming statements. However, starting with the Weatherup 1975 article, a Mason disarming statement or quote became the norm for making this erroneous conflation. The latest two articles, from the 2000 Chicago-Kent Law Review Symposium on the Second Amendment, were intended not only to to influence the U.S. Fifth Circuit Court of Appeals' U.S. vs Emerson decision, but those of any subsequent federal court cases as well. Fortunately, five Supreme Court Justices were not in a bridge buying frame of mind in Heller, nor were two Fifth Circuit judges in Emerson, preferring the actual historical facts found in period sources to stories about history from professional hiStory tellers.
Law Review Articles Containing a 1788 Virginia Convention
Militia Powers/Second Amendment Conflation Error
2000, Rakove, The Second Amendment: The Highest Stage of Originalism, 76 Chicago-Kent Law Review Symposium on the Second Amendment, 103
2000, Uviller & Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 Chicago-Kent Law Review Symposium on the Second Amendment, 403
1998, Bogus, The Hidden History of the Second Amendment, 31 University of California at Davis Law Review, 309
1984, Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71#1 Journal of American History
1976, Santee, The Right to Keep and Bear Arms, 26#2, Drake Law Review, 26
1975, Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 Hastings Constitutional Law Quarterly, 961
1969, Levine & Saxe, The Second Amendment: The Right to Bear Arms, 7 Houston Law Review, 1
1966, Feller & Gotting, The Second Amendment: A Second Look, 61 Northwestern University Law Review, 46
The above information indicates that supporters of gun control have based their interpretation of Second Amendment history on a fundamental error for nearly half a century, and they have consistently ignored period evidence contradicting their beliefs for that entire period of time. Since 1999, a number of professional historians have been recruited to back up legal professionals supporting gun control in the ongoing Second Amendment dispute. Some published their views in the 2000 Chicago-Kent Law Review. More recently, a number of the recruited historians filed briefs presenting their views about Second Amendment history to the Supreme Court in the Heller case, and most recently in McDonald vs Chicago. These professional historians' briefs supporting gun control laws have consistently been in error regarding period facts, statements, and views of the Founders that are most relevant for understanding the Second Amendment, points examined and documented in three different series of posts at this Blog. Their errors have been so numerous and egregious as to make it perfectly clear to any unbiased individual that nothing these historians present about the Second Amendment can be relied upon as accurate.
The period evidence directly contradicts the belief that the terms "well regulated militia" and "state" in the Second Amendment's first clause are references indicating any intent to protect state militia power. Such arguments have often been advanced in attempts to prove that the Second Amendment is not related to individual rights. The particular historical materials examined in David Hardy's Cardozo Law Review article and the previous post prove that both the Heller dissent and the historians' arguments using the militia powers debate in Virginia as a link to the Second Amendment are erroneous. Because the Second Amendment predecessor originated in Virginia, these facts also prove that every argument ever made by supporters of gun control claiming that the Second Amendment relates to state power over the militia is erroneous. That information added to the fact that the original bill of rights language containing "well regulated militia" and "free state" came directly from Virginia's bill of rights provision limiting state legislative power brings all ambiguity in this matter to an end, at least for those willing to rely on documented historical facts.
Thursday, February 11, 2010
Historians Try to Sell Brooklyn London Benjamin Franklin Bridge to U.S. Supreme Court - Part 4
Conflation , Contradiction and Error in the Pennsylvania History McDonald Amicus from Professional Historians
[Updated February 20 & 26, 2010]
To the historians, the extensive ratification era arguments about militia powers and the need to amend them are viewed as proof that the Second Amendment resulted from those very arguments because the term "militia" appears in it. The following statement from the historians' brief indicates this general view:
"The Second Amendment came out of a debate about the purpose and control of militias." [p.23]
The above statement is false, as demonstrated in the following analysis, because the Second Amendment actually came out of the ratification era demands for a federal bill of rights consisting of existing state bill of rights protections. The following series of statements from the historians contain embedded quotes of two major Founders, George Mason and Patrick Henry, spoken in the 1788 Virginia Ratifying Convention. The historians thoroughly conflate Antifederalist desire for a militia powers amendment with the separate and distinct desire for Second Amendment related bill of rights protection in their use of these Founders' quotes.
""Mason warned of central governments’ penchant for disarming the people:
[The Id. 146 reference above from the brief is in error. It should read 446. DY]
The historical problem in the above amalgam of quotes is conflation of Mason militia powers debate quotes that are not directly Second Amendment related to a Henry bill of rights quote from two days later during bill of rights debate that is directly related to the Second Amendment. Mason's quotes are from June 14 debate on the Article 1, Section 8 militia powers. Mason stated the solution for his concerns by specifying the amendment he wanted. The "solution" that the historians read into Mason's second remark is diversionary and misleading, thus, it is discussed in a later post. Found within the same paragraph along with Mason's first quote is the solution to the problem he is describing, which the historians completely ignore:
"I wish that, in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them. With this single exception, I would agree to this part, as I am conscious the government ought to have the power." [The Origin of the Second Amendment, p.402]
Mason, chairman of the Antifederalist amendments committee, was the author of the Virginia Ratifying Convention's proposed Bill of Rights as well as a list of 20 "other" non-bill of rights amendment proposals. [OSA, pp.457-462] Compare Mason's stated amendment solution above to Virginia's proposed "other" amendment #11, which is also ignored by the historians:
"11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect ro provide for the same." [OSA, p.460]
This is the proposed amendment that directly results from the militia powers debate Mason's quote is extracted from. His stated amendment solution in the same paragraph as his quote is presented in virtually the same words as proposed amendment #11, which he wrote. Also, Mason clearly indicated this was the only amendment Antifederalists sought regarding the Article 1, Section 8 militia powers. Thus, the Second Amendment was not the solution Mason was seeking, nor could it possibly have been the result of that or any other day's militia powers arguments from the Virginia Ratifying Convention. The historians view that the Second Amendment "came out of a debate about the purpose and control of militias" is false because the period sources they ignore conclusively prove that the Second Amendment was not the solution sought by Mason, and that the actual solution, proposed amendment #11, was the only one sought by the Virginia Antifederalists relating to the Constitution's militia powers. The period evidence conclusively indicates that the Mason quote provided by the historians is not directly related to the Second Amendment.
Patrick Henry's quote from two days later, on the other hand, is directly related to the future Second Amendment. It not only directly dealt with the bill of rights issue, but Second Amendment predecessor language from the state bill of rights was also specifically introduced in the Virginia Convention in relation to it. Shortly before making the statement quoted by the historians, Henry initiated discussion about the need for a federal bill of rights on June 16 by having the 8th through 13th articles of Virginia's declaration of rights read. [OSA, p.434] These particular protections against state violation of the people's rights were later incorporated as the first eight amendments of the U.S. Bill of Rights (excepting the 3rd). [OSA, pp.743-746] This is the 13th article from Virginia's 1776 bill of rights:
"13. 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, p.434]
Virginia' 1776 provision is the original state bill of rights progenitor of the Second Amendment's first clause. It was adopted verbatim, with added bill of rights protection from other states, by the 1788 Virginia Ratifying Convention as part of its proposed bill of rights. Here is Virginia's proposed Bill of Rights Article 17:
"17th. That the people have a right to keep and bear arms; 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, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power." [OSA, p.459]
This 1788 Virginia proposal is the original two-clause ratification era progenitor of the Second Amendment. James Madison not only voted for the above Virginia Ratifying Convention proposal, he promised to actually support the Second Amendment related parts of it along with all of the other individual rights protections in the proposed bill of rights from Virginia, and he directly relied upon it in drawing up his version of what became the Second Amendment. Madison's 1789 version of the above as presented to Congress stated:
"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country". [OSA, pp.654-655]
For comparison, this is the Second Amendment as passed by Congress and ratified by the states:
"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bar arms shall not be infringed." [OSA, p.744]
To the historians, the Second Amendment was all about the militia, not about individual rights to possess arms, and it resulted from ratification era militia powers arguments. Period sources prove their use of militia powers arguments as relating to the Second Amendment are erroneous because they conflate largely unrelated arguments as well as an entirely unrelated amendment with the Second Amendment. That the Second Amendment is a bill of rights provision taken directly from state bills of rights provisions is what the period sources clearly show. These facts cannot be determined from the confusing information presented by the historians in their brief. They can only be determined by examining essential information the historians have ignored, such as Mason's militia powers amendment solution to the problem he was describing, and the resulting militia powers amendment he produced to solve that problem.
The historians constantly pursue a militia powers nexus throughout their brief while always downplaying the much more relevant bill of rights related history of the Second Amendment. Their attempted link of the two different subjects in the above amalgam of Mason and Henry quotes results in error due to conflation of unrelated militia powers and bill of rights arguments and solutions.
Because of such errors, the professional historians' amicus brief supporting Chicago's gun control laws in the McDonald case cannot be relied upon for factual information about the Second Amendment's history or intent.
[Updated February 20 & 26, 2010]
To the historians, the extensive ratification era arguments about militia powers and the need to amend them are viewed as proof that the Second Amendment resulted from those very arguments because the term "militia" appears in it. The following statement from the historians' brief indicates this general view:
"The Second Amendment came out of a debate about the purpose and control of militias." [p.23]
The above statement is false, as demonstrated in the following analysis, because the Second Amendment actually came out of the ratification era demands for a federal bill of rights consisting of existing state bill of rights protections. The following series of statements from the historians contain embedded quotes of two major Founders, George Mason and Patrick Henry, spoken in the 1788 Virginia Ratifying Convention. The historians thoroughly conflate Antifederalist desire for a militia powers amendment with the separate and distinct desire for Second Amendment related bill of rights protection in their use of these Founders' quotes.
""Mason warned of central governments’ penchant for disarming the people:
"An instance within the memory of some of this house will show us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British government was advised by an artful man [Sir George Keith], who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia."The solution Mason saw was that “divine Providence has given every individual – the means of self-defense” by joining a militia to combat a standing army. Id. 380–81. Patrick Henry argued that “You have a bill of rights [in Virginia] to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power!” Id. 146. He sought to replicate at the federal level the state constitutional provisions allowing the people to protect themselves against government. The right of revolution was still foremost in his mind." [pp.25-26]
[The Id. 146 reference above from the brief is in error. It should read 446. DY]
The historical problem in the above amalgam of quotes is conflation of Mason militia powers debate quotes that are not directly Second Amendment related to a Henry bill of rights quote from two days later during bill of rights debate that is directly related to the Second Amendment. Mason's quotes are from June 14 debate on the Article 1, Section 8 militia powers. Mason stated the solution for his concerns by specifying the amendment he wanted. The "solution" that the historians read into Mason's second remark is diversionary and misleading, thus, it is discussed in a later post. Found within the same paragraph along with Mason's first quote is the solution to the problem he is describing, which the historians completely ignore:
"I wish that, in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them. With this single exception, I would agree to this part, as I am conscious the government ought to have the power." [The Origin of the Second Amendment, p.402]
Mason, chairman of the Antifederalist amendments committee, was the author of the Virginia Ratifying Convention's proposed Bill of Rights as well as a list of 20 "other" non-bill of rights amendment proposals. [OSA, pp.457-462] Compare Mason's stated amendment solution above to Virginia's proposed "other" amendment #11, which is also ignored by the historians:
"11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect ro provide for the same." [OSA, p.460]
This is the proposed amendment that directly results from the militia powers debate Mason's quote is extracted from. His stated amendment solution in the same paragraph as his quote is presented in virtually the same words as proposed amendment #11, which he wrote. Also, Mason clearly indicated this was the only amendment Antifederalists sought regarding the Article 1, Section 8 militia powers. Thus, the Second Amendment was not the solution Mason was seeking, nor could it possibly have been the result of that or any other day's militia powers arguments from the Virginia Ratifying Convention. The historians view that the Second Amendment "came out of a debate about the purpose and control of militias" is false because the period sources they ignore conclusively prove that the Second Amendment was not the solution sought by Mason, and that the actual solution, proposed amendment #11, was the only one sought by the Virginia Antifederalists relating to the Constitution's militia powers. The period evidence conclusively indicates that the Mason quote provided by the historians is not directly related to the Second Amendment.
Patrick Henry's quote from two days later, on the other hand, is directly related to the future Second Amendment. It not only directly dealt with the bill of rights issue, but Second Amendment predecessor language from the state bill of rights was also specifically introduced in the Virginia Convention in relation to it. Shortly before making the statement quoted by the historians, Henry initiated discussion about the need for a federal bill of rights on June 16 by having the 8th through 13th articles of Virginia's declaration of rights read. [OSA, p.434] These particular protections against state violation of the people's rights were later incorporated as the first eight amendments of the U.S. Bill of Rights (excepting the 3rd). [OSA, pp.743-746] This is the 13th article from Virginia's 1776 bill of rights:
"13. 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, p.434]
Virginia' 1776 provision is the original state bill of rights progenitor of the Second Amendment's first clause. It was adopted verbatim, with added bill of rights protection from other states, by the 1788 Virginia Ratifying Convention as part of its proposed bill of rights. Here is Virginia's proposed Bill of Rights Article 17:
"17th. That the people have a right to keep and bear arms; 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, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power." [OSA, p.459]
This 1788 Virginia proposal is the original two-clause ratification era progenitor of the Second Amendment. James Madison not only voted for the above Virginia Ratifying Convention proposal, he promised to actually support the Second Amendment related parts of it along with all of the other individual rights protections in the proposed bill of rights from Virginia, and he directly relied upon it in drawing up his version of what became the Second Amendment. Madison's 1789 version of the above as presented to Congress stated:
"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country". [OSA, pp.654-655]
For comparison, this is the Second Amendment as passed by Congress and ratified by the states:
"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bar arms shall not be infringed." [OSA, p.744]
To the historians, the Second Amendment was all about the militia, not about individual rights to possess arms, and it resulted from ratification era militia powers arguments. Period sources prove their use of militia powers arguments as relating to the Second Amendment are erroneous because they conflate largely unrelated arguments as well as an entirely unrelated amendment with the Second Amendment. That the Second Amendment is a bill of rights provision taken directly from state bills of rights provisions is what the period sources clearly show. These facts cannot be determined from the confusing information presented by the historians in their brief. They can only be determined by examining essential information the historians have ignored, such as Mason's militia powers amendment solution to the problem he was describing, and the resulting militia powers amendment he produced to solve that problem.
The historians constantly pursue a militia powers nexus throughout their brief while always downplaying the much more relevant bill of rights related history of the Second Amendment. Their attempted link of the two different subjects in the above amalgam of Mason and Henry quotes results in error due to conflation of unrelated militia powers and bill of rights arguments and solutions.
Because of such errors, the professional historians' amicus brief supporting Chicago's gun control laws in the McDonald case cannot be relied upon for factual information about the Second Amendment's history or intent.
Monday, February 8, 2010
Historians Try to Sell Brooklyn London Benjamin Franklin Bridge to U.S. Supreme Court - Part 3
Contradictions and Errors in the Pennsylvania History McDonald Amicus from Professional Historians
Continuing with ratification era related arguments, the historians make this assertion:
"Federalists also argued that the ability to amend the Constitution negated any necessity for armed revolt and made obsolete any right of revolution." [pp.23-24]
There is a very good reason why not a single statement by a Federalist is presented to back up this bold assertion from the historians. It is false. Federalists were just as aware as the Antifederalists that tyranny was possible, although they thought it a much more remote possibility under the proposed Constitution than their Antifederalist opponents, who considered it very likely. This is why it was the Antifederalists who supported, developed, and politically forced Federalists to accept the Bill of Rights. Both parties had much to say about the people possessing their own arms in the future. The Antifederalists feared that the people would be disarmed. Their opposition often stated a Federalist Mantra, which in its simplest form indicated that tyranny was impossible under the new Consitution because the people were armed, exactly the opposite sentiment claimed by the historians. [See The Founders View of the Right to Bear Arms, pp.93-94, 105-110, for information on the Federalist Mantra.] Here are just four of many examples of the arms related Federalist Mantra:
"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States." [Noah Webster, An Examination into the Leading Principles of the Federal Constitution, Oct. 10, 1787, OSA, p.40]
"It was a chimerical idea to suppose that a country like this could ever be enslaved. How is an army for that purpose to be obtained from the freemen of the United States? They certainly, said he, will know to what object it is to be applied. Is it possible, he asked, that an army could be raised for the purpose of enslaving themselves and their brethren? or, if raised, whether they could subdue a nation of freemen, who know how to prize liberty, and who have arms in their hands?" [Theodore Sedgwick, Debate in the Massachusetts Ratifying Convention, Jan. 24, 1788, OSA. pp.230-231]
"[T]o the citizens of America . . . .
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. . . . 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. . . .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." [Tench Coxe, Newspaper Article, Feb. 20, 1788, OSA, pp.275-276, emphasis in original]
"The people are not to be disarmed of their weapons. They are left in full possession of them." [Zachariah Johnson, Debate in the Virginia Ratifying Convention, June 25, 1788, OSA, p.452]
Johnson's above comments appear in the middle of a speech in which he explains why it is impossible for an establishment of religion to be made by the government under the new Constitution. The fact is that one of the main Federalist arguments in favor of the U.S. Constitution, which had no bill of rights, was that the people could prevent tyranny because they not only possessed and knew how to use arms but they also understood their rights.
Antifederalists did not want to engage in future arguments about what those rights of the people were, or have to fight their government to retain them. Instead, they insisted that the protections limiting the state governments found in the existing American state bills of rights be added to the Constitution as a Federal Bill of Rights. Thus, their rights would be part of the law of the land, and every government official would have to take an oath to uphold them. Violations by the government of the rights of the people would be plain to all and would authorize the people to defend their rights by defending the supreme law of the land against the officials who were actually violating it.
The historians assertion that Federalists argued the right of revolution against tyranny was obsolete is false. This claim in their brief suggests that these historians are completely unfamiliar with ratification era sources, and that their opinions about how the Founders viewed the Second Amendment and an armed populace are completely unreliable.
Continuing with ratification era related arguments, the historians make this assertion:
"Federalists also argued that the ability to amend the Constitution negated any necessity for armed revolt and made obsolete any right of revolution." [pp.23-24]
There is a very good reason why not a single statement by a Federalist is presented to back up this bold assertion from the historians. It is false. Federalists were just as aware as the Antifederalists that tyranny was possible, although they thought it a much more remote possibility under the proposed Constitution than their Antifederalist opponents, who considered it very likely. This is why it was the Antifederalists who supported, developed, and politically forced Federalists to accept the Bill of Rights. Both parties had much to say about the people possessing their own arms in the future. The Antifederalists feared that the people would be disarmed. Their opposition often stated a Federalist Mantra, which in its simplest form indicated that tyranny was impossible under the new Consitution because the people were armed, exactly the opposite sentiment claimed by the historians. [See The Founders View of the Right to Bear Arms, pp.93-94, 105-110, for information on the Federalist Mantra.] Here are just four of many examples of the arms related Federalist Mantra:
"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States." [Noah Webster, An Examination into the Leading Principles of the Federal Constitution, Oct. 10, 1787, OSA, p.40]
"It was a chimerical idea to suppose that a country like this could ever be enslaved. How is an army for that purpose to be obtained from the freemen of the United States? They certainly, said he, will know to what object it is to be applied. Is it possible, he asked, that an army could be raised for the purpose of enslaving themselves and their brethren? or, if raised, whether they could subdue a nation of freemen, who know how to prize liberty, and who have arms in their hands?" [Theodore Sedgwick, Debate in the Massachusetts Ratifying Convention, Jan. 24, 1788, OSA. pp.230-231]
"[T]o the citizens of America . . . .
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. . . . 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. . . .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." [Tench Coxe, Newspaper Article, Feb. 20, 1788, OSA, pp.275-276, emphasis in original]
"The people are not to be disarmed of their weapons. They are left in full possession of them." [Zachariah Johnson, Debate in the Virginia Ratifying Convention, June 25, 1788, OSA, p.452]
Johnson's above comments appear in the middle of a speech in which he explains why it is impossible for an establishment of religion to be made by the government under the new Constitution. The fact is that one of the main Federalist arguments in favor of the U.S. Constitution, which had no bill of rights, was that the people could prevent tyranny because they not only possessed and knew how to use arms but they also understood their rights.
Antifederalists did not want to engage in future arguments about what those rights of the people were, or have to fight their government to retain them. Instead, they insisted that the protections limiting the state governments found in the existing American state bills of rights be added to the Constitution as a Federal Bill of Rights. Thus, their rights would be part of the law of the land, and every government official would have to take an oath to uphold them. Violations by the government of the rights of the people would be plain to all and would authorize the people to defend their rights by defending the supreme law of the land against the officials who were actually violating it.
The historians assertion that Federalists argued the right of revolution against tyranny was obsolete is false. This claim in their brief suggests that these historians are completely unfamiliar with ratification era sources, and that their opinions about how the Founders viewed the Second Amendment and an armed populace are completely unreliable.
Historians Try to Sell Brooklyn London Benjamin Franklin Bridge to U.S. Supreme Court - Part 2
Contradictions and Errors in the Pennsylvania History McDonald Amicus from Professional Historians
Dealing directly with the Pennsylvania Minority's bill of rights proposals, the historians make this observation:
"This suggests that Madison and Congress knew about the "Reasons of Dissent," read them, and treated them like a menu, selecting some options and rejecting others, including the individual-oriented gun-right provisions. . . .
The proposals of the Pennsylvania dissenters that were incorporated, sometimes almost word-for-word, into the [U.S.] Bill of Rights include the rights in the Free Exercise, Free Press, and Free Speech Clauses of the First Amendment, and those in the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments. . . . But Congress decided not to recognize the individual-oriented gun rights in the Dissent, including the right not to be disarmed except in exceptional circumstances and the right to hunt." [pp.28, 29]
However, contradicting their claim that Congress rejected the Minority's desired protection relating to the right to bear arms, the Second Amendment clearly contains Pennsylvania style language in its second clause, which James Madison altered from a Pennsylvania style declaration into a restrictive form:
"The right of the people to keep and bear arms shall not be infringed". [OSA, p.654, underline added]
Additionally, the Pennsylvania Minority's provision protected the people's right to "keep" arms by preventing passage of laws for "disarming the people or any of them". Exactly the same purpose was achieved in the Second Amendment by simply adding "keep" to the existing people have a right to bear arms language. It should be clear to any unbiased reader that the historians are in complete denial of period sources they are fully aware of.
For the sake of historical clarity, the Pennsylvania style language found in the U.S. Bill of Rights resulted from the fact that George Mason wrote the model for the U.S. Bill of Rights in the Virginia Ratifying Convention using the Virginia Declaration of Rights as the foundation with added provisions from other states, including Pennsylvania. While there is no doubt that the members of Congress were familiar with the proposals of the Pennsylvania Minority, they did not need to use the Minority's proposals directly as a menu, because their provisions were incorporated in Mason's proposal. All of the first eight amendments are directly based upon Mason's model Bill of Rights, [OSA, pp.388-390] which included the "bear arms" style language of the Pennsylvania Minority that originated in the 1776 Pennsylvania Declaration of Rights. [OSA, p.754]
There is another historical fact also contradicting the historians. A total of fifteen amendments were proposed by the Pennsylvania Minority. [OSA, pp.150-152] Only the first seven were based on quotes of Pennsylvania Declaration of Rights provisions, the seventh one being "the people have a right to bear arms" protection. The Speaker of the House of Representatives, which passed the Bill of Rights amendments, was Frederick Augustus Muhlenberg from Pennsylvania. He stated in an August 18, 1789 letter that the congressional proposal of amendments, mostly bill of rights provisions, about to be passed from the House to the Senate "takes in the principal Amendments which our Minority had so much at Heart". [FVRBA, p.195, OSA. p.799] The principal amendments were bill of rights proposals. That was the reason why the first amendments to the U.S. Constitution were Bill of Rights provisions, the first eight of which were all developed directly from state bills of rights protections. Pennsylvania was the state where "the people have a right to bear arms" language first appeared. That language is the foundation for the Second Amendment's second, restrictive clause.
That the historians are attempting to deny, separate, and explain away Pennsylvania "people have a right to bear arms" language as entirely unrelated to the Second Amendment is evident. Their attempts to do so lead to many more errors of fact than those documented above, as will be noted in future posts of this series.
Dealing directly with the Pennsylvania Minority's bill of rights proposals, the historians make this observation:
"This suggests that Madison and Congress knew about the "Reasons of Dissent," read them, and treated them like a menu, selecting some options and rejecting others, including the individual-oriented gun-right provisions. . . .
The proposals of the Pennsylvania dissenters that were incorporated, sometimes almost word-for-word, into the [U.S.] Bill of Rights include the rights in the Free Exercise, Free Press, and Free Speech Clauses of the First Amendment, and those in the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments. . . . But Congress decided not to recognize the individual-oriented gun rights in the Dissent, including the right not to be disarmed except in exceptional circumstances and the right to hunt." [pp.28, 29]
However, contradicting their claim that Congress rejected the Minority's desired protection relating to the right to bear arms, the Second Amendment clearly contains Pennsylvania style language in its second clause, which James Madison altered from a Pennsylvania style declaration into a restrictive form:
"The right of the people to keep and bear arms shall not be infringed". [OSA, p.654, underline added]
Additionally, the Pennsylvania Minority's provision protected the people's right to "keep" arms by preventing passage of laws for "disarming the people or any of them". Exactly the same purpose was achieved in the Second Amendment by simply adding "keep" to the existing people have a right to bear arms language. It should be clear to any unbiased reader that the historians are in complete denial of period sources they are fully aware of.
For the sake of historical clarity, the Pennsylvania style language found in the U.S. Bill of Rights resulted from the fact that George Mason wrote the model for the U.S. Bill of Rights in the Virginia Ratifying Convention using the Virginia Declaration of Rights as the foundation with added provisions from other states, including Pennsylvania. While there is no doubt that the members of Congress were familiar with the proposals of the Pennsylvania Minority, they did not need to use the Minority's proposals directly as a menu, because their provisions were incorporated in Mason's proposal. All of the first eight amendments are directly based upon Mason's model Bill of Rights, [OSA, pp.388-390] which included the "bear arms" style language of the Pennsylvania Minority that originated in the 1776 Pennsylvania Declaration of Rights. [OSA, p.754]
There is another historical fact also contradicting the historians. A total of fifteen amendments were proposed by the Pennsylvania Minority. [OSA, pp.150-152] Only the first seven were based on quotes of Pennsylvania Declaration of Rights provisions, the seventh one being "the people have a right to bear arms" protection. The Speaker of the House of Representatives, which passed the Bill of Rights amendments, was Frederick Augustus Muhlenberg from Pennsylvania. He stated in an August 18, 1789 letter that the congressional proposal of amendments, mostly bill of rights provisions, about to be passed from the House to the Senate "takes in the principal Amendments which our Minority had so much at Heart". [FVRBA, p.195, OSA. p.799] The principal amendments were bill of rights proposals. That was the reason why the first amendments to the U.S. Constitution were Bill of Rights provisions, the first eight of which were all developed directly from state bills of rights protections. Pennsylvania was the state where "the people have a right to bear arms" language first appeared. That language is the foundation for the Second Amendment's second, restrictive clause.
That the historians are attempting to deny, separate, and explain away Pennsylvania "people have a right to bear arms" language as entirely unrelated to the Second Amendment is evident. Their attempts to do so lead to many more errors of fact than those documented above, as will be noted in future posts of this series.
Historians Try to Sell Brooklyn London Benjamin Franklin Bridge to U.S. Supreme Court - Part 1
Contradictions and Errors in the Pennsylvania History McDonald Amicus from Professional Historians
[This Benjamin Franklin Bridge series of posts will address numerous historical errors in the Pennsylvania and Early American history amicus brief filed with the U.S. Supreme Court by professional historians supporting the Windy City in the McDonald vs Chicago Second Amendment incorporation case. One of the four professional historians involved, Professor Finkelman, was also involved in two other McDonald historical briefs, one analyzed in the London Bridge series of posts, as well as being involved in the historians' 2008 brief supporting Washington DC in the Heller case. For those unfamiliar with this blog, the London Bridge series of posts consists of 6 parts starting January 16, 2010, and the Heller related series consists of 24 parts starting January 25, 2009, entitled Root Causes of Never-Ending Second Amendment Dispute. Both series address and document astonishing numbers of historical errors appearing in the Second Amendment related briefs from professional historians. In this Pennsylvania related brief, Professor Finkelman has teamed up with Nathan Kozuskanich, author of a paper on Pennsylvania history and the meaning of "bear arms" that was cited in the historians' Heller brief.]
The historians' argument begins with a look at the ideas of English Whig writers, particularly John Locke, and of several Americans regarding self-defense and defense of the polity, which the historians prefer to call "collective" self-defense. Their brief then deals with Pennsylvania colonial history as influenced by the Quakers who founded and controlled the colony for a large part of its history. They argue that Quakers had a significant impact on development of some provisions in the 1776 state constitution. However, they grossly exaggerate the extent of that influence, misinterpret the language and intent of the arms related provisions within it, and completely ignore the provisions of the state constitution authorizing and limiting the new government being established under it. Regarding the ratification period, when the U.S. Constitution was debated and a federal bill of rights was demanded, they make arguments based upon the proposals of the Pennsylvania Minority, including their arms related provision, which the historians deny has any relationship to the Second Amendment. The purpose of the brief is largely to explain away the "people have a right to bear arms for the defence of themselves and the state" language of the Pennsylvania Declaration of Rights as not protecting an individual right (except as allowed by the government). This and subsequently developed Pennsylvania language about "bear arms" is consistently separated from any connection to the Second Amendment in spite of extensive contrary period source evidence. The analysis of errors in this series will generally begin with the later ratification period and trace arguments back in time to the earlier revolutionary and colonial periods.
To properly understand the historians' view, their general statement about the Second Amendment's meaning follows:
"In the Second Amendment, the Founders codified the right of the people to bear arms collectively, with the understanding that some individuals could possess those arms, but the militia, and thus the individuals, would be in the service of the government, which would ensure that the militia was “well regulated.” [p.35]
Restating for clarity, some individuals who are members of a government regulated militia in government service would have the "right" to possess and bear arms if allowed or ordered to do so by the government. The extent of the conflict between the historians understanding of this "right" protected by the Bill of Rights and that of the Founders who developed and adopted it will become evident as the views of the former are documented to be in direct conflict with the statements and views of the latter.
Early in their McDonald amicus brief, the historians make the following assertion in relation to their request that the Supreme Court "reconsider its historical interpretation" in Heller:
"The Founders used “bear arms” to have specific meaning limited to the context of military service." [p.12, footnote 3]
This statement is false. The 1787 Second Amendment related provision from the Pennsylvania Minority's bill of rights proposal offered in that state's ratifying convention and later printed in their "Reasons of Dissent" directly contradicts it.
"That the people have a right to bear arms for the defence 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". [The Origin of the Second Amendment, p.151, underline added]
Clearly, "bear arms" is specifically used to refer to other than "military service" purposes in this proposal, a fact directly contradicting the historians erroneous claim. The Pennsylvania Minority's proposed bill of rights arms proposal not only protected each individual's right to bear arms for specified private purposes, such as defense and killing game, and for organized defense when necessary at the discretion of the individual, it also protected each individual's right to keep arms by preventing laws disarming the people. Note that this Second Amendment related provision was part of the first proposal for a federal bill of rights made in a state ratifying convention, and that Federalists voted down all of the Minority's bill of rights provisions, which are discussed in the next post of this series in more detail.
[This Benjamin Franklin Bridge series of posts will address numerous historical errors in the Pennsylvania and Early American history amicus brief filed with the U.S. Supreme Court by professional historians supporting the Windy City in the McDonald vs Chicago Second Amendment incorporation case. One of the four professional historians involved, Professor Finkelman, was also involved in two other McDonald historical briefs, one analyzed in the London Bridge series of posts, as well as being involved in the historians' 2008 brief supporting Washington DC in the Heller case. For those unfamiliar with this blog, the London Bridge series of posts consists of 6 parts starting January 16, 2010, and the Heller related series consists of 24 parts starting January 25, 2009, entitled Root Causes of Never-Ending Second Amendment Dispute. Both series address and document astonishing numbers of historical errors appearing in the Second Amendment related briefs from professional historians. In this Pennsylvania related brief, Professor Finkelman has teamed up with Nathan Kozuskanich, author of a paper on Pennsylvania history and the meaning of "bear arms" that was cited in the historians' Heller brief.]
The historians' argument begins with a look at the ideas of English Whig writers, particularly John Locke, and of several Americans regarding self-defense and defense of the polity, which the historians prefer to call "collective" self-defense. Their brief then deals with Pennsylvania colonial history as influenced by the Quakers who founded and controlled the colony for a large part of its history. They argue that Quakers had a significant impact on development of some provisions in the 1776 state constitution. However, they grossly exaggerate the extent of that influence, misinterpret the language and intent of the arms related provisions within it, and completely ignore the provisions of the state constitution authorizing and limiting the new government being established under it. Regarding the ratification period, when the U.S. Constitution was debated and a federal bill of rights was demanded, they make arguments based upon the proposals of the Pennsylvania Minority, including their arms related provision, which the historians deny has any relationship to the Second Amendment. The purpose of the brief is largely to explain away the "people have a right to bear arms for the defence of themselves and the state" language of the Pennsylvania Declaration of Rights as not protecting an individual right (except as allowed by the government). This and subsequently developed Pennsylvania language about "bear arms" is consistently separated from any connection to the Second Amendment in spite of extensive contrary period source evidence. The analysis of errors in this series will generally begin with the later ratification period and trace arguments back in time to the earlier revolutionary and colonial periods.
To properly understand the historians' view, their general statement about the Second Amendment's meaning follows:
"In the Second Amendment, the Founders codified the right of the people to bear arms collectively, with the understanding that some individuals could possess those arms, but the militia, and thus the individuals, would be in the service of the government, which would ensure that the militia was “well regulated.” [p.35]
Restating for clarity, some individuals who are members of a government regulated militia in government service would have the "right" to possess and bear arms if allowed or ordered to do so by the government. The extent of the conflict between the historians understanding of this "right" protected by the Bill of Rights and that of the Founders who developed and adopted it will become evident as the views of the former are documented to be in direct conflict with the statements and views of the latter.
Early in their McDonald amicus brief, the historians make the following assertion in relation to their request that the Supreme Court "reconsider its historical interpretation" in Heller:
"The Founders used “bear arms” to have specific meaning limited to the context of military service." [p.12, footnote 3]
This statement is false. The 1787 Second Amendment related provision from the Pennsylvania Minority's bill of rights proposal offered in that state's ratifying convention and later printed in their "Reasons of Dissent" directly contradicts it.
"That the people have a right to bear arms for the defence 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". [The Origin of the Second Amendment, p.151, underline added]
Clearly, "bear arms" is specifically used to refer to other than "military service" purposes in this proposal, a fact directly contradicting the historians erroneous claim. The Pennsylvania Minority's proposed bill of rights arms proposal not only protected each individual's right to bear arms for specified private purposes, such as defense and killing game, and for organized defense when necessary at the discretion of the individual, it also protected each individual's right to keep arms by preventing laws disarming the people. Note that this Second Amendment related provision was part of the first proposal for a federal bill of rights made in a state ratifying convention, and that Federalists voted down all of the Minority's bill of rights provisions, which are discussed in the next post of this series in more detail.
Tuesday, February 2, 2010
Historians Try to Sell Brooklyn London Bridge to U.S. Supreme Court - Part 6
More Error and Omission in the Professional Historians' McDonald Amicus Brief
[Updated February 3, 2010]
The first clause of the Second Amendment states:
“A well regulated militia being necessary to the security of a free State” [The Origin of the Second Amendment, p.744]
Here are the historians' related assertions and quote from a British source:
"The Founders did not limit themselves to borrowing the premise of the Second Amendment from English law. They also borrowed the Second Amendment’s preamble from England’s militia laws, for the Second Amendment’s “well regulated militia” language was inspired by the preamble of the 1757 Militia Act, which stated,
“Whereas a well-ordered and well-disciplined Militia is essentially necessary to the Safety, Peace and Prosperity of this Kingdom[.]"" [pp.35-36]
The only evidence in support of the historians' first assertion above was the claim that the arms provision of the English Bill of Rights and the Second Amendment had only one difference, the latter not being dependent on privileges of wealth or birth. A number of other major differences indicating the historians' assertion was erroneous were demonstrated in Part 1 of this series. In this post, the historians' claim regarding the extent that the Second Amendment is based on the Founders' borrowing from and being inspired by the British militia law is examined. Rather than simply accepting the historians' assertion based on superficial similarities between the two, an examination of their substantial differences is undertaken.
Compare the Second Amendment's first clause to the historians' quote of Britain's 1757 militia act above. The 1757 act has a dependent structure similar to the first clause of the Second Amendment, but shares only one noun with the Second Amendment, militia. Structure is inherently meaningless without words and is far from evidence of borrowing or inspiration. Besides, the Second Amendment's actual American predecessor, a Virginia proposal quoted below, is not a dependent clause but a simple declaration. The dependent nature of the Second Amendment's well regulated militia clause originated when James Madison wrote his version of the Virginia proposal, which was introduced into Congress in 1789, with that body further enhancing the language's dependent nature. [OSA, pp.654-655, 707, 712] Other than the historians' assertion, no period evidence from America is presented linking the Second Amendment to Britain's 1757 militia act. Thus, the dependent nature of Britain's 1757 militia act has nothing whatever to do with later development of the leading dependent clause of the Second Amendment. Considering the misquotes and errors of fact in their brief, as documented in previous posts of this London Bridge series, there are compelling reasons not to accept any undocumented assertions from these professional historians regarding Second Amendment history or intent. Every such claim requires careful examination, and any without supporting period documentation cannot be relied upon.
The historians' claim is that the British act and Second Amendment have similarities of meaning, not just of structure and terminology. But a militia act of Britain could not have the same intent as an American Bill of Rights provision, thus similarity of intent is out of the question, especially since no period evidence is provided to support this view. That leaves similarity of terminology to examine as the only apparent source of any borrowing and inspiration for the Second Amendment's first clause.
Examine the list of terms appearing in both provisions: a, well, militia, necessary, to, the
The only noun in the list of overlapping terms is militia. The important question that immediately arises is whether the British understanding of militia was the same as the American understanding of the term. This is where the historians' claim of borrowing and inspiration utterly fails, for the fact is there was a major difference between the understanding and use of the term militia in Britain and that in America during the founding period.
Britain's militia act established a system relying on a small fraction of the men as the internal source of defense for the kingdom. One reason for the small relative size of the militia was Parliament's imposition of high property qualifications for British militia members, qualifications that were even higher than for members of Parliament, as indicated in the following statement made in the House of Commons an a militia bill, November 15, 1775:
"Lord North, after paying great encomiums on this constitutional mode of defence [militia], replied to the last objection [concerning the smallness of qualifications] by observing, that qualifications were higher in the militia than for the members to sit in that House to make laws." [American Archives, 4th Series, VI, p.86]
Thus, Parliament established a small militia confined to the wealthy and upper classes as defensive support for the Kingdom, which was controlled by Parliament, and Parliament was controlled by the nobility and upper classes, the very upper levels of British society that membership in the militia was confined to. Restating, Britain was a class society controlled by a minority of the upper classes and was protected by a select militia whose members were part of the upper class minority that controlled the country. As for who provided the arms of Britain's select militia members, the militia themselves or the government, Sir George Savile had this to say shortly before the comments of Lord North quoted above:
"hitherto, he said, no man in this country could be armed without the consent of Parliament; the army were armed by Parliament; so were the Militia; but if this bill should pass, the military would be, or at least might be, armed by the King, without the consent of Parliament." [American Archives, 4th Series, VI, p.85]
In Britain, the only apparent way anyone could be armed was either by Parliament, or by the king if Parliament agreed to that. The existing select militia of Britain was obviously armed by Parliament.
Did Americans understand the militia as Britons did - a small fraction of the men, among the most influential and wealthy, who were provided with arms by the government and were the only internal support for government, which was controlled by a small minority of the influential and wealthy? Most certainly not. American militia laws, directly contrary to the British act, were intended to assure that all of the able-bodied free men generally obtained and possessed their own arms and could be relied upon for defense. These American militia laws were passed by largely representative assemblies in the various colonies and early states. Americans understood the militia of Britain to be a select militia that was unlike the general militia relied on in America. This understanding of militia was generally consistent throughout the colonial period and the founding of the United States. [See The Founders' View of the Right to Bear Arms]
Contrary to the historians' claim, the Second Amendment's well regulated militia language was actually borrowed from and inspired by a predecessor provision from the 1788 Virginia Ratifying Convention [OSA, p.459] and included this quote from Virginia's 1776 Declaration of Rights verbatim:
"SEC. 13. 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]
George Mason, who wrote this original, also wrote the model for the U.S. Bill of Rights as a leader of Antifederalists in 1788 Virginia. His Second Amendment related proposal included this well regulated militia language preceded by a direct quote of the Massachusetts Declaration of Rights language that "the people have a right to keep and to bear arms". [OSA, pp.390, 773] This much more relevant information on the Second Amendment's origin in state bill of rights restrictions on state governments is continually ignored in the historians' McDonald amicus while relatively unrelated material and erroneous information is funneled to the Supreme Court in order to becloud the subject, making it extremely and unnecessarily complex. The fact that six of these twenty-one historians also filed a brief in the previous Heller case, where they correctly noted that the Second Amendment originated in the Virginia Ratifying Convention, proves that the intention of this brief is to mislead the U.S. Supreme Court by diverting it from relevant American constitutional sources to largely irrelevant British sources.
During the political dispute over ratification of the Constitution, Americans understood the militia to be a reference to the "whole people, except a few public officers", as stated by Antifederalist George Mason in the 1788 Virginia Ratifying Convention. [OSA, p.430] Federalists also understood the militia to be not only conceptually, but literally based on the people. This is evident from Alexander Hamilton's description of the militia as "the people at large" in The Federalist #29. [OSA, p.198] Antifederalists, those who politically fought to obtain a bill of rights, often described a select militia as no different than a standing army, which was dangerous to liberty. In order to preserve liberty, what they wanted as part of the U.S. Constitution was a bill of rights that would protect the concept already found in every state bill of rights guaranteeing a defensively effective armed population. It is those state bill of rights Second Amendment progenitors that are the origin of the Second Amendment's two clauses, and it is those that the historians are purposefully diverting the Supreme Court well away from in their brief.
There certainly was nothing borrowed from or inspirational about the only other noun in the British 1757 militia act, Kingdom, as compared to the free "state" terminology found in the Second Amendment's first clause. A kingdom under Parliamentary control by the upper classes and claiming unlimited authority was exactly what Americans had just waged a successful war for independence against in order to establish the new free state constitutions and government limiting declarations of rights in America. Thus, contrary to the historians' claim, the British 1757 militia act quoted in the brief provides nothing other than slight superficial similarities to the Second Amendment's first clause. The nouns included in the two provisions, militia in each and Kingdom versus free state, have fundamentally different meanings. These two sources have different purposes, with terms having different meanings, and their structures, while similar, provide no information about inherent meaning. And as noted above, the similarity of dependent structure in the two is an artifact stamped on the Second Amendment by James Madison and Congress. The actual American predecessor of the Second Amendment's first clause Madison relied on was not a dependent clause, but rather a declaration quoted verbatim from America's first state declaration of rights.
Regarding the brief's extensive pre-1689 English history, which constitutes the largest part of the historians' argument, it is essentially irrelevant for understanding anything about much later American constitutional development, such as state bills of rights and the later U.S. Constitution and its Second Amendment containing Bill of Rights. For this reason, no attempt has been made to examine quotes or conclusions for accuracy in that early English material.
[NOTE: The brief under discussion in this London Bridge series of posts is more specifically described as that from English/Early American historians. The series is not complete, as there are other errors to be examined. However, there is a different McDonald historical brief that begs for attention here. It is distinguished from the above brief in that it relates to Pennsylvania and Early American history. The next post to appear will begin a new series dealing with errors in this different McDonald Pennsylvania related historical amicus.]
[Updated February 3, 2010]
The first clause of the Second Amendment states:
“A well regulated militia being necessary to the security of a free State” [The Origin of the Second Amendment, p.744]
Here are the historians' related assertions and quote from a British source:
"The Founders did not limit themselves to borrowing the premise of the Second Amendment from English law. They also borrowed the Second Amendment’s preamble from England’s militia laws, for the Second Amendment’s “well regulated militia” language was inspired by the preamble of the 1757 Militia Act, which stated,
“Whereas a well-ordered and well-disciplined Militia is essentially necessary to the Safety, Peace and Prosperity of this Kingdom[.]"" [pp.35-36]
The only evidence in support of the historians' first assertion above was the claim that the arms provision of the English Bill of Rights and the Second Amendment had only one difference, the latter not being dependent on privileges of wealth or birth. A number of other major differences indicating the historians' assertion was erroneous were demonstrated in Part 1 of this series. In this post, the historians' claim regarding the extent that the Second Amendment is based on the Founders' borrowing from and being inspired by the British militia law is examined. Rather than simply accepting the historians' assertion based on superficial similarities between the two, an examination of their substantial differences is undertaken.
Compare the Second Amendment's first clause to the historians' quote of Britain's 1757 militia act above. The 1757 act has a dependent structure similar to the first clause of the Second Amendment, but shares only one noun with the Second Amendment, militia. Structure is inherently meaningless without words and is far from evidence of borrowing or inspiration. Besides, the Second Amendment's actual American predecessor, a Virginia proposal quoted below, is not a dependent clause but a simple declaration. The dependent nature of the Second Amendment's well regulated militia clause originated when James Madison wrote his version of the Virginia proposal, which was introduced into Congress in 1789, with that body further enhancing the language's dependent nature. [OSA, pp.654-655, 707, 712] Other than the historians' assertion, no period evidence from America is presented linking the Second Amendment to Britain's 1757 militia act. Thus, the dependent nature of Britain's 1757 militia act has nothing whatever to do with later development of the leading dependent clause of the Second Amendment. Considering the misquotes and errors of fact in their brief, as documented in previous posts of this London Bridge series, there are compelling reasons not to accept any undocumented assertions from these professional historians regarding Second Amendment history or intent. Every such claim requires careful examination, and any without supporting period documentation cannot be relied upon.
The historians' claim is that the British act and Second Amendment have similarities of meaning, not just of structure and terminology. But a militia act of Britain could not have the same intent as an American Bill of Rights provision, thus similarity of intent is out of the question, especially since no period evidence is provided to support this view. That leaves similarity of terminology to examine as the only apparent source of any borrowing and inspiration for the Second Amendment's first clause.
Examine the list of terms appearing in both provisions: a, well, militia, necessary, to, the
The only noun in the list of overlapping terms is militia. The important question that immediately arises is whether the British understanding of militia was the same as the American understanding of the term. This is where the historians' claim of borrowing and inspiration utterly fails, for the fact is there was a major difference between the understanding and use of the term militia in Britain and that in America during the founding period.
Britain's militia act established a system relying on a small fraction of the men as the internal source of defense for the kingdom. One reason for the small relative size of the militia was Parliament's imposition of high property qualifications for British militia members, qualifications that were even higher than for members of Parliament, as indicated in the following statement made in the House of Commons an a militia bill, November 15, 1775:
"Lord North, after paying great encomiums on this constitutional mode of defence [militia], replied to the last objection [concerning the smallness of qualifications] by observing, that qualifications were higher in the militia than for the members to sit in that House to make laws." [American Archives, 4th Series, VI, p.86]
Thus, Parliament established a small militia confined to the wealthy and upper classes as defensive support for the Kingdom, which was controlled by Parliament, and Parliament was controlled by the nobility and upper classes, the very upper levels of British society that membership in the militia was confined to. Restating, Britain was a class society controlled by a minority of the upper classes and was protected by a select militia whose members were part of the upper class minority that controlled the country. As for who provided the arms of Britain's select militia members, the militia themselves or the government, Sir George Savile had this to say shortly before the comments of Lord North quoted above:
"hitherto, he said, no man in this country could be armed without the consent of Parliament; the army were armed by Parliament; so were the Militia; but if this bill should pass, the military would be, or at least might be, armed by the King, without the consent of Parliament." [American Archives, 4th Series, VI, p.85]
In Britain, the only apparent way anyone could be armed was either by Parliament, or by the king if Parliament agreed to that. The existing select militia of Britain was obviously armed by Parliament.
Did Americans understand the militia as Britons did - a small fraction of the men, among the most influential and wealthy, who were provided with arms by the government and were the only internal support for government, which was controlled by a small minority of the influential and wealthy? Most certainly not. American militia laws, directly contrary to the British act, were intended to assure that all of the able-bodied free men generally obtained and possessed their own arms and could be relied upon for defense. These American militia laws were passed by largely representative assemblies in the various colonies and early states. Americans understood the militia of Britain to be a select militia that was unlike the general militia relied on in America. This understanding of militia was generally consistent throughout the colonial period and the founding of the United States. [See The Founders' View of the Right to Bear Arms]
Contrary to the historians' claim, the Second Amendment's well regulated militia language was actually borrowed from and inspired by a predecessor provision from the 1788 Virginia Ratifying Convention [OSA, p.459] and included this quote from Virginia's 1776 Declaration of Rights verbatim:
"SEC. 13. 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]
George Mason, who wrote this original, also wrote the model for the U.S. Bill of Rights as a leader of Antifederalists in 1788 Virginia. His Second Amendment related proposal included this well regulated militia language preceded by a direct quote of the Massachusetts Declaration of Rights language that "the people have a right to keep and to bear arms". [OSA, pp.390, 773] This much more relevant information on the Second Amendment's origin in state bill of rights restrictions on state governments is continually ignored in the historians' McDonald amicus while relatively unrelated material and erroneous information is funneled to the Supreme Court in order to becloud the subject, making it extremely and unnecessarily complex. The fact that six of these twenty-one historians also filed a brief in the previous Heller case, where they correctly noted that the Second Amendment originated in the Virginia Ratifying Convention, proves that the intention of this brief is to mislead the U.S. Supreme Court by diverting it from relevant American constitutional sources to largely irrelevant British sources.
During the political dispute over ratification of the Constitution, Americans understood the militia to be a reference to the "whole people, except a few public officers", as stated by Antifederalist George Mason in the 1788 Virginia Ratifying Convention. [OSA, p.430] Federalists also understood the militia to be not only conceptually, but literally based on the people. This is evident from Alexander Hamilton's description of the militia as "the people at large" in The Federalist #29. [OSA, p.198] Antifederalists, those who politically fought to obtain a bill of rights, often described a select militia as no different than a standing army, which was dangerous to liberty. In order to preserve liberty, what they wanted as part of the U.S. Constitution was a bill of rights that would protect the concept already found in every state bill of rights guaranteeing a defensively effective armed population. It is those state bill of rights Second Amendment progenitors that are the origin of the Second Amendment's two clauses, and it is those that the historians are purposefully diverting the Supreme Court well away from in their brief.
There certainly was nothing borrowed from or inspirational about the only other noun in the British 1757 militia act, Kingdom, as compared to the free "state" terminology found in the Second Amendment's first clause. A kingdom under Parliamentary control by the upper classes and claiming unlimited authority was exactly what Americans had just waged a successful war for independence against in order to establish the new free state constitutions and government limiting declarations of rights in America. Thus, contrary to the historians' claim, the British 1757 militia act quoted in the brief provides nothing other than slight superficial similarities to the Second Amendment's first clause. The nouns included in the two provisions, militia in each and Kingdom versus free state, have fundamentally different meanings. These two sources have different purposes, with terms having different meanings, and their structures, while similar, provide no information about inherent meaning. And as noted above, the similarity of dependent structure in the two is an artifact stamped on the Second Amendment by James Madison and Congress. The actual American predecessor of the Second Amendment's first clause Madison relied on was not a dependent clause, but rather a declaration quoted verbatim from America's first state declaration of rights.
Regarding the brief's extensive pre-1689 English history, which constitutes the largest part of the historians' argument, it is essentially irrelevant for understanding anything about much later American constitutional development, such as state bills of rights and the later U.S. Constitution and its Second Amendment containing Bill of Rights. For this reason, no attempt has been made to examine quotes or conclusions for accuracy in that early English material.
[NOTE: The brief under discussion in this London Bridge series of posts is more specifically described as that from English/Early American historians. The series is not complete, as there are other errors to be examined. However, there is a different McDonald historical brief that begs for attention here. It is distinguished from the above brief in that it relates to Pennsylvania and Early American history. The next post to appear will begin a new series dealing with errors in this different McDonald Pennsylvania related historical amicus.]
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