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.