Monday, January 25, 2010

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

More Error and Omission in the Historians' McDonald Amicus Brief

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

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

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

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

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

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

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

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

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

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

Historians Try to Sell Brooklyn London Bridge to U.S. Supreme Court - Part 4

Errors, Misquotes, and Omissions in the Professional Historians' McDonald Amicus Brief

As documented in the three previous posts of this series, the issues raised in the professional historians McDonald brief ignore the most relevant information relating to the American origin of the Second Amendment, the development of state bills of rights. The first part of this series examined errors of fact and misquotes diverting away from any mention of these revolutionary era sources. This fourth part examines a major argument presented in the brief relating to the vote of a Boston Town Meeting in 1768. Regarding this vote, the historians misquote the period document, misattribute one of its statements, and incomprehensibly misinterpret not only its source, which they cite, but its purpose.

The historian's brief includes the following statement and quote, described as relating to "the 1768 Boston Town Council’s militia resolve" [p.3]:

"the resolve stated its purposes as the "necessary Defence of the community that the good and wholesome Law of this Province, [which requires] every listed Soldier and other householder ... [to be] provided with a well fix’d Firelock, Musket, Accoutrements and Ammunition." [p.30, emphasis added]

This is the source referred to and misquoted above:

"Upon a Motion made and seconded, the following Vote was passed by a very great Majority ---Vizt.---
Whereas, by an Act of Parliament of the First of King William and Queen Mary it is declared that the Subjects being Protestants, may have Arms for their Defence; It is the opinion of this Town, that the said Declaration is founded in Nature Reason and sound Policy, and is well adapted for the necessary defence of the Community----
And for as much as by a good and wholesome Law of this Province, every listed Soldier, and other Householder (except Troopers who by Law are to be otherwise provided) shall be always provided with a well fixed Fire Lock Musket, Accoutrement and Ammunition as in said Law particularly mentioned, to the satisfaction of the Commission Officers of the Company; and as there is at this Time a prevailing apprehension, in the Minds of many, of an approaching War with France: In order that the Inhabitants of this Town may be prepared in case of sudden danger; Voted, that those of the said Inhabitants who may at present be unprovided, be and hereby are requested duly to observe the said Law at this Time --------" [Report of the Record Commissioners, Boston Town Records 1758-1769, City Document No. 88, p.264, emphasis added]

For ease of identification, two words are made bold in the historians' misquote and seven in the actual quote of Bostons' vote. The quote provided in the historians' brief deletes the seven bold opening words of the vote's operative section ("And for as much as by a") and substitutes in their place the two bold words ("that the") in their quote. The historians thus engage in two different unjustifiable actions in linking the "Whereas" and operative sections of the document. They delete the original words without indication and replace them with words picked out of thin air. Their associated statement also misattributes the ending description of the "Whereas" section, which specifically relates to the English Bill of Rights, as instead a statement of the purpose of Massachusetts' law. The voted provision did state a specific purpose, but it is not found in the mangled quote presented by the historians. The purpose of the vote was "that the inhabitants of this town may be prepared in case of sudden danger".

Contrary to the description used seven times in the historians' brief, neither the term "resolve" nor "resolution" is found in this document, nor is there any reference to a "Boston Town Council". The historians' understanding of who composed a "Boston Town Council" is as follows:

"the right of "self-preservation" was to be exercised not by individuals acting privately or independently, but as a militia organized by their elected representatives, whether Parliament, the Boston Town Council, or otherwise." [pp.7-8]

Referring to a "Council" or "Town Council" or "Boston Town Council" a total of nine times in the brief, it is obvious that the historians are under the mistaken impression there was a "Boston Town Council" consisting of elected representatives who passed the "resolve" they discuss at length. But the very source they cite for all of this information also directly contradicts their interpretation of who passed it:


This source indicates the vote originated in a town meeting where inhabitants vote directly. Not only do the historians confuse who passed the vote, they also mix up exactly what the vote was all about in this statement:

"the Council issued a resolve invoking the Declaration of Rights’ "have arms" provision by calling upon the Massachusetts militia to defend Boston." [p.29]

As anyone can read above in the reprint of the vote, there was no "Council' involved, the Massachusetts militia were not mentioned, nor were they requested to defend Boston. The men of Boston simply "requested" those inhabitants of the town who did not possess arms to observe the law so that they would be prepared in case of sudden danger.

The historians make another erroneous assertion in their brief:

"Just as Parliament had called upon the militia to defend against the tyranny of Charles I and James II, the Boston Town Council asserted its right of "self-preservation" by invoking the 1693 Militia Act." [p.30]

Again, there was no "Boston Town Council" asserting "its" right of self preservation. What is interesting is the inability of the historians to recognize the fact that what the inhabitants of Boston did was prepare to openly resist the tyranny of Parliament and the current king by simply following existing law, which protected the exercise of their natural rights. The inhabitants of Boston stated in their vote that the arms provision of the English Bill of Rights "is founded in Nature". The historians even quote Samuel Adams describing Boston's vote as relating to the:

"natural Right which the People have reserved to themselves, confirmed by the Bill of Rights, to keep Arms for their own Defence". [p.31]

This vote of Boston raises some questions that the uninquisitive historians naturally fail to ask. It implies that British officials were not making sure that every able-bodied man possessed arms as the law required. Considering the nature of the disagreements between the colonists and the British, such inaction on the part of the governor, a British appointee, seems quite natural. And the response of the British to the Bostonians' vote supports the view that this was purposeful inaction on the governor's part.

In a February 9, 1769 resolve, Parliament condemned the Boston inhabitants' vote as being "illegal and unconstitutional", and this in spite of the fact that the Town Meeting not only cited the English Bill of Rights but simply requested inhabitants to comply with the law. This indicates a difference of opinion about who should control arms, government or the people themselves. Boston's vote and later actions in America relating to obvious disagreement over arms possession are undoubtedly why the inhabitants of Massachusetts later included a provision in the declaration of their rights established as part of the state constitution specifying that the people have a "right" to keep arms. It is most interesting that such an important subject relating to the Second Amendment is not mentioned by the historians.

So, the historians confuse a vote of the freemen of Boston in Town Meeting with a "resolve" of a "Boston Town Council" that did not exist. They also misquote the vote, misatribute one of its statements, seriously misinterpret its stated purpose, and fail to examine its clear implications relating to disagreement over who should control arms, Parliament or the people. All of the historians' arguments are largely diversionary in nature. The historians are avoiding having to deal with American state bill of rights development, which is the most relevant information for understanding the Second Amendment.

Friday, January 22, 2010

Historians Try to Sell Brooklyn London Bridge to U.S. Supreme Court - Part 3

Errors, Misquotes, and Omissions in the Professional Historians McDonald Amicus Brief

As documented in the previous post, historical records directly link the Second Amendment and the 1780 Massachusetts Declaration of Rights provision indicating that the people have a right to keep and to bear arms. This post examines historical records linking British seizure of arms in Massachusetts to that state's declaration of rights arms provision, which is the only one of eight related period provisions specifying a right to "keep" arms.

The historians' McDonald brief misrepresents the Continental Congress' Declaration of the Causes and Necessity of Taking Up Arms, passed on July 6, 1775. Their completely misleading description of British "seizure of arms from Boston’s departing inhabitants", [p.37] an occurrence directly following the initiation of hostilities on April 19, 1775, misrepresents the incident. In return for the inhabitants, who were confined within the fortified town, depositing all of their arms with the town selectmen for safekeeping so they could be marked and returned to their owners at some future period, General Gage guaranteed the vast majority who wanted to depart that they could do so with all of their other possessions. The arms thus deposited by the inhabitants were seized by the British, and General Gage allowed only a small number of Bostonians to leave who desired to do so. Although this is the brief's sole mention of a specific British arms seizure, it is only part of the disarming activities carried on by the British in that colony. [The Founders View of the Rights to Bear Arms, pp.52-53]

Hostilities of the American Revolution began in Massachusetts when Major Pitcairn, leading advance British troops on their way to Concord to seize and destroy arms, attempted to disarm Americans on the green at Lexington. However, long before this disarming incident, which resulted in outright war, the British had been disarming Americans in Massachusetts by seizing gunpowder and arms for a considerable period of time. Almost seven months earlier, on September 1, 1774, Gage ordered out a secret military detail to seize the publicly owned powder in the Charlestown powder house and move it to a location under his military control. Due to false reports of casualties, this powder alarm as it was called resulted in tens of thousands of armed provincials marching toward Boston until the rumors were counteracted. General Gage ordered that no gunpowder, even that privately owned and stored in the Boston powder house, could be removed without his permission, which, unsurprisingly, could not be obtained. [FVRBA, pp.51, 36-38]

Period firearms were useless other than as clubs without gunpowder. Thus, seizure of powder was the equivalent of seizure of arms. General Gage started seizing all arms and ammunition being transported out through the land entrance of Boston after it was fortified. It was not until October 19, 1774 (with notification reaching the colonies much later) that the British halted importation of arms and ammunition into the colonies by law. The subsequent disarming of Bostonians by seizure of their arms after hostiles started in April of 1775 was intensified during July with a proclamation that anyone in Boston still found in possession of arms would be deemed an enemy of the king's government and punished. Mere possession of a firearm in one's home earned the violator of Gage's proclamation 75 days in prison. Thus, the people of Massachusetts, and especially the inhabitants of Boston, had been subjected to extensive seizure of arms by the British over a considerable period of time, from the beginning of September 1774 into April of 1775, and for Boston's inhabitants on until the British were actually driven out in 1776. [FVRBA, pp.36-39, 51-53, 57]

There was nothing even approaching the ongoing attempts to disarm the people of Massachusetts occurring in any of the other colonies. A case of arms stopped by customs officials in New York was much publicized, and the governor of Virginia seized some public powder and had it placed on a British vessel, resulting in Patrick Henry's march in May of 1775 to obtain possession or reimbursement. [FVRBA, p.53-54] But only in Massachusetts had there been ongoing and preplanned attempts to disarm the population for a long period of time extending from well prior to hostiles until they began, and in the case of the Bostonians, until well after.

In its attempts to tie the Second Amendment to English documents and ideas using American revolutionary era comments on self-preservation, the historians' brief completely ignores the eight revolutionary era American state bills of rights, every one of which contained a Second Amendment related progenitor. Four of these, including the very first, consisted of well regulated militia references understood as relating to an armed populace, while the other four used people have a right to bear arms language understood similarly. But only one state, the very last to adopt bear arms style language, specifically added the word "keep" in relation to arms in its Second Amendment predecessor. An attentive reader will not have to guess which state it was after viewing the more relevant American history connected to Second Amendment development presented in this and the previous post. It was Massachusetts, whose bill of rights arms provision the historians' were unable to accurately quote for some odd reason.

Recall that the historians' brief includes this claim:

"Historical records show that the Second Amendment was unrelated to any seizure of colonists’ arms by British troops." [36]

Based on the historical records discussed above and in the previous post, this assertion by the historians is not only erroneous but preposterous. Massachusetts' Declaration of Rights is the only one of eight equivalent state provisions, all of which contain Second Amendment predecessors, to specify that the people have a right to "keep" arms. That language is a direct result of the ongoing and extensive British actions seizing arms from the people of Massachusetts, and more particularly from the inhabitants of Boston, who were treated as nothing more than expendable hostages by the British after hostilities began.

The professional historians' McDonald brief supporting Chicago's gun control laws is completely unreliable historically and purposefully avoids discussion of the most relevant revolutionary era sources relating to the Second Amendment, the eight revolutionary era state bills of rights.

Thursday, January 21, 2010

Historians Try to Sell Brooklyn London Bridge to U.S. Supreme Court - Part 2

Errors, Misquotes, and Omissions in the Professional Historians' McDonald Amicus Brief

The historians' brief claims that:

"Historical records show that the Second Amendment was unrelated to any seizure of colonists’ arms by British troops." [36]

American historical records directly contradict this claim, instead indicating that the Second Amendment was clearly related to seizure of Americans' privately owned arms by the British in Massachusetts. As noted in Part 1, the essential information missing from the historians' McDonald brief relates to development of the eight state bills of rights, each of which included an American progenitor of the Second Amendment. Examination of these provisions and their relationship to development of the Second Amendment is the key to unlocking the American constitutional history avoided and missing in the historians' brief.

The state bills of rights provided no protection against violation of individual rights under laws passed by the new federal government proposed by the 1787 Federal Convention. The new Constitution provided that federal laws were paramount to state constitutions. Thus, George Mason sought a bill of rights based on the protections of the state bills of rights near the end of the convention, but a committee to form one was rejected by an overwhelming Federalist majority. As a result, Mason refused to sign the Constitution and became a major ratification era opponent seeking a bill of rights based upon the state power limiting bills of rights provisions.

In 1788, while chairman of an Antifederalist amendments committee in the Virginia Ratifying Convention, Mason wrote a model bill of rights for the proposed U.S. Constitution. This was based directly on the 1776 Virginia Declaration of Rights, of which Mason was the author, with added language taken from other state bills of rights. His 1788 model was adopted almost verbatim by Virginia, and Virginia's proposal was adopted by North Carolina. Mason also sent his model bill of rights to Antifederalist leaders in New York. As a result, New York's ratification declaration of rights included a Second Amendment provision nearly identical to that in Virginia's proposed bill of rights. James Madison and the First Congress relied on these ratifying convention proposals in developing the U.S. Bill of Rights. [See The Founders' View of the Right to Bear Arms, pp.82-83, 131-136, 139-153]

George Mason's original 1788 Second Amendment predecessor stated:

"That the People have a Right to keep & to 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;"
[The Origin of the Second Amendment, p.390]

Here is the actual wording of the 1780 Massachusetts Declaration of Rights arms provision:

"XVII. The people have a right to keep and to bear arms for the common defence." [OSA p.773]

Mason's proposal used an exact quote from the Massachusetts 1780 Declaration of Rights arms provision added to an exact quote of the Virginia Declaration of Rights arms provision. This is the American origin of the two-clause Second Amendment predecessor in 1788. It is also the direct link between the Second Amendment and the Massachusetts 1780 Declaration of Rights "keep" arms provision that the historians misquoted and only identified as a 1780 Massachusetts Constitution provision, as noted in Part 1.

It is most curious how uninterested these 21 historians are concerning language in the 1780 Massachusetts Declaration of Rights that is so directly connected to development of the Second Amendment. They relate the Massachusetts language only to a Massachusetts law, and it is so unimportant to them that they manage to misquote it in both provisions. This is just further proof that the historians' McDonald brief avoids essential American sources to divert attention to much less relevant English sources that cannot enlighten concerning subsequent American constitutionalism.

In Part 3, the historical links between this Massachusetts Declaration of Rights "keep" arms provision and the seizure of colonists' arms by the British in Massachusetts will be examined.

Sunday, January 17, 2010

Historians Try to Sell Brooklyn London Bridge to U.S. Supreme Court - Part 1

Errors, Contradictions, Misquotes, and Omissions in the Professional Historians' McDonald Amicus Brief
[Updated January 20 & 24, 2010]
[This series will address historical problems in the English/Early American historians' McDonald amicus brief filed with the U.S. Supreme Court in support of Chicago's gun control laws. Six of the twenty-one historians involved in this brief were also involved in the historians' 2008 brief supporting Washington DC in the Heller case. For those unfamiliar with this blog, there is a 24 part series starting on January 25, 2009, entitled Root Causes of Never-Ending Second Amendment Dispute (below) addressing and documenting the astonishing number of errors that appeared in that earlier historians' Heller brief. Six of those same historians are back now offering the Court another dose of factually incorrect statements and off-track American history.]

There are major historical problems with the brief supporting Chicago filed by the English/Early American historians in the McDonald Second Amendment incorporation case now before the U.S. Supreme Court. Most of the brief relates to English history and development of the 1689 English Bill of Rights arms provision. The second major part deals with arguments based on Blackstone's Commentaries on the Laws of England, which was published in the late 1760's prior to the American Revolution. Neither of these older historical sources can inform regarding Americans' subsequent establishment of written constitutions with power limiting bills of rights, things unknown in British law and not even mentioned in Blackstone. A following section of the brief attempts to link American revolutionary era statements about self-preservation and defense to Blackstone's description of the English arms provision. The final part of the brief contains numerous errors, contradictions, and omissions of relevant information in its attempts to link the Second Amendment's purpose to the concept protected in the English Bill of Rights and its language to that found in British militia laws. Largely diversionary in nature, the historians focus attention on earlier and largely unrelated historical information while diverting entirely away from American historical development of government limiting bills of rights, which are directly related to the Second Amendment's language and intent.

The arms provision found in the 1689 English Bill of Rights stated:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law. [OSA, p.783]

The 1789 proposed Article IV amendment adopted as the Second Amendment to the U.S. Constitution in 1791:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. [OSA, p. 744]

The historians' brief makes this assertion regarding the purpose of these provisions on page 35:

"The only difference between the English "have arms" provision and the Second Amendment is that the Second Amendment right is not dependent on privileges of wealth or birth."

This assertion is not only factually incorrect, it is entirely inane. There are only four words common to both provisions (to, the, and, arms), and only one of them is a noun. The English provision does not mention any right whatsoever, a difference. Also, the Second Amendment right is not dependent on religion, another difference. Americans are not subjects of a monarch, an additional difference. And the very reason why the American right is protected in the Constitution as part of the supreme law of the land is so it is not dependent upon laws allowing for its exercise, a most important difference. A number of other points could be listed here, but let it be remembered that this entire brief diverts away from the relevant American bill of rights related history that the Court should be examining. In the prior Heller case, the Court did not examine this most relevant American history, which is found in a source cited a number of times in Heller briefs, and as a result, the decision did not correct the major historical error in Justice Stevens' dissent, an error provided to the Court by six of the historians involved in this McDonald brief.

The historians' McDonald brief inaccurately refers to the English provision as the "right" to have arms many times, significantly more than use of accurate terms such as "allowance" or "provision." This indicates that these historians do not understand the basic difference between the English and American bills of rights. James Madison indicated that comparisons of the English and American bills of rights (exactly what the historians engage in here regarding one provision) were "inapplicable" because their purposes were so different. This was the main point of Madison's discussion about the English Bill of Rights during his 1789 speech to Congress introducing the Bill of Rights amendments. In explaining why "there is too great a difference in the case to warrant the comparison", Madison stated:

"In the declaration of rights which that country [Great Britain] has established, the truth is they have gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite. . . .But although the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many States have thought it necessary to raise barriers against power in all forms and departments of Government," [OSA, p.656, 657]

Thus, contrary to the historians' McDonald brief assertion that the only difference involved was class or condition, virtually every aspect of the arms statements in the English and U.S. Bills of Rights is different other than the noun "arms" itself. That difference was well understood and emphasized in 1789 by Madison, who not only was the direct author of the Second Amendment's power limiting restrictive clause language, but was involved in preparing and authorizing the very first American state bill of rights, that of Virginia in 1776. Madison's statements regarding these matters are definitive because he was involved in the very genesis of American bills of rights at both the state and federal levels.

Continuing with errors in the historians' McDonald brief, on page 38 they assert the following in reference to the revolutionary period:

"the phrases "bear arms" and "keep arms" are found only in state militia laws of the era."

However, in the previous sentence of the brief they present a period document directly contradicting this claim. There, they quote the Massachusetts Declaration of Rights in a statement about:

"Discussing the 1780 Massachusetts Constitution provision protecting the "right of the people to keep and bear arms for the common defence".

First, note that the historians fail to specify their quote is from the Massachusetts Declaration of Rights. That Declaration of Rights most assuredly protected the people's right to "bear arms", but it was also most assuredly not a state militia law. Three other state bills of rights protected the right to "bear arms" as well (Pennsylvania, North Carolina, and Vermont), but none of those provisions were state militia laws either. Thus, the brief's statement about "bear arms" only being found in state militia laws of the era is another factually incorrect assertion by the historians. A number of state bill of rights provisions contained that language, and the American history entirely ignored by these historians directly links those very arms related provisions to later predecessors of the Second Amendment. In short, this brief omits the most relevant historical information for understanding the Second Amendment's purpose.

Also note that the historians' brief misquotes the Massachusetts Bill of Rights provision, which actually stated:

"XVII. The people have a right to keep and to bear arms for the common defence." [OSA p.773]

The historians garbled together the wording of the Second Amendment and that of the 1780 Massachusetts Bill of Rights provision in their quotation of the latter. But wait, there's more. That is not the only misquote within this sentence. The historians go on after "common defence" discussing use of related language in a state law as follows:

"the Massachusetts legislature stated that the right to "keep and bear arms," was a right necessary for the safety of the state".

Actually, the legislature used only "bear arms" in this preamble to a bill relating to tumults and insurrections. The preamble stated:

"Whereas in a free government, where the people have a right to bear arms for the common defence, and the military power is held in subordination to the civil authority, it is necessary for the safety of the State that the virtuous citizens thereof should hold themselves in readiness, and when called upon, should exert their efforts to support the civil government, and oppose the attempts of the factious and wicked men who may wish to subvert the laws and Constitution of their country". [Source: go to page 366]

Not only do the historians replace "bear arms" with "keep and bear arms" in this misquote, they also attribute the safety of the state directly to the right to bear arms for the common defense, when in fact, the document they quote attributes it to the citizens who should exert their efforts to support the civil government when called upon.

Thus, just on page 38 of the English/Early American historians' McDonald amicus brief alone there are at least two misquotes of period sources, one misattribution, and two factually incorrect statements, with the last of the latter providing direct evidence of significant omission of relevant period sources. The "bear arms" language that the historians assert was only found in period militia laws was in fact found in a state bill of rights arms provision they quote, and it is also found in a number of other period American bill of rights arms related provisions. The historians are clearly ignoring state bill of rights provisions that are much more relevant for understanding the Second Amendment's purpose while instead advancing pre-revolutionary English sources that are largely irrelevant. The alternative to their ignoring this relevant information is they haven't got a clue to begin with, an unlikely prospect. These facts, errors, and omissions indicate that the historians are not reliable sources of information for the Court's fresh examination of the "origins of the Second Amendment" that the brief advises "to properly decide the question presented" in McDonald. [p.6]

Friday, January 1, 2010

Historical Points in Chicago's McDonald Brief

Chicago extensively re-argued Heller in its prior McDonald brief opposing Cert. Its new brief has a short historical section where Heller is also re-argued. The thrust of this new argument is that the right of the people to keep and bear arms was only added to the Bill of Rights because of a perceived necessity of protecting the militia. [p.34] This is just another attempt to make the restrictive clause dependent upon the militia clause.

Historically this argument is clearly unfounded. Every provision of the first eight amendments was developed from the existing state bills of rights. Both clauses of the Second Amendment come from that source via the Virginia Ratifying Convention's proposed Bill of Rights.

In Virginia's 1788 proposal, the two-clause Second Amendment predecessor consists of an exact quote of Virginia's 1776 well regulated militia provision [OSA, p.748] preceded by an almost exact quote of Massachusetts' "the people have a right to keep and to bear arms" language. [OSA, p.773] These state bill of rights provisions were understood as limiting the state government and protecting a defensively effective armed population, a concept that is dependent on the fundamental right of individuals to possess and use arms.

All fundamental rights protections taken from the state bills of rights and eventually added to the U.S. Bill of Rights were intended to protect individual rights. Demands for such action igniting the Bill of Rights dispute that raged throughout ratification. The argument that sparked this dispute in the Federal Convention from George Mason, author of Virginia's 1776 bill of rights, was that the new government had authority paramount to state constitutions. State declarations of rights would not protect individual rights against the new government because these rights protecting declarations were part of the state constitutions. A Federal bill of rights was needed as part of the new U.S. Constitution to assure their continued protection against violation by the new government.

As a result of the Federal Convention's refusal to add a bill of rights to the Constitution, Mason notoriously refused to sign the document of which he was a major architect. He even stated in a public speech that he would rather cut off his hand than sign the Constitution, which he described as destructive of the people's rights. The end result was Mason eventually forming what became the model for the U.S. Bill of Rights in Virginia's 1788 Ratifying Convention.

Mason based his proposed 1788 model on his own 1776 Virginia production, and he added provisions from the bills of rights of other states. As an example, Virginia had not protected freedom of speech, which Mason added from Pennsylvania's bill of rights. He also duplicated protections stated in different language. For example, he added Pennsylvania's right of writing and publishing to Virginia's existing freedom of the press language. And he added "the people have a right to keep and to bear arms" from Massachusetts' bill of rights to Virginia's existing Article 13: "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.390] This is the origin of the two-clause Second Amendment predecessor, both clauses of which were equal declarations relating to the same fundamental, unalienable rights.

Mason also indicated in the 1788 Virginia Convention, in a bill of rights argument initiated by the reading of articles 8 through 13 of Virginia's bill of rights, that these rights were limits upon legislative authority. [OSA, p.436] If the author of the Second Amendment's predecessor language understood well regulated militia bill of rights language as a limit on state and federal authority, why would anyone want to accept historically unfounded gun control advocate claims to the contrary?

An understanding of Bill of Rights related developmental history makes clear that the gun control advocate view twists this language around from protecting the people against abuse of state and federal authority regarding arms possession and use to authorizing both state and federal abuse of power regarding arms possession and use. Their argument is that government has complete control over all matters relating to anything relating to the term "militia." The problem with their view is that it does not use militia as understood during the ratification period nor does it place the Second Amendment in its proper government limiting Bill of Rights context.