The American Revolutionary Era Origin of the Second Amendment's Clauses

 Updated February 21, 2013
   Happy Bill of Rights Day!
   My article, The American Revolutionary Era Origin of the Second Amendment's Clauses, was published in Volume 23 (2011) of the JOURNAL ON FIREARMS & PUBLIC POLICY.
   It traces and documents both clauses of the amendment back through their earliest American historical roots. The patriot actors who brought about the language and its earlier predecessors, their terminology, and its meaning to them are all examined and documented in a relatively short article.
   What The Revolutionary Era Origin of the Second Amendment's Clauses represents is a complete counter to the numerous errors and missing history foisted on the Supreme Court by Prof. Jack Rakove and fourteen other professional historians in their Heller case amicus brief. This article places the Second Amendment back into its actual bill of rights developmental context and fills in the massive related void found in the Rakove brief. The state bill of rights predecessors are re-connected to the Second Amendment in plain fashion because James Madison and Congress both relied directly on quotes of such provisions by state ratifying conventions in their desires for the two-clause Second Amendment predecessor.
   The early Revolutionary Era usage of "well regulated militia" language by George Mason in reference to local self-embodying associations of self-armed men for mutual defence against unconstitutional actions by government officials and forces is examined. It was Mason who later authored the 1776 Virginia Declaration of Rights, America's first, and Virginia's 1788 model for the U.S. Bill of Rights. The original American state bill of rights "well regulated militia" language was intended to constitutionally protect an armed population that could keep government raised forces under their control. That same language was used verbatim in Virginia's demand for the U.S. Bill of Rights and was understood as contained within the congressonal proposal that became the Second Amendment.
   A final interesting point. George Mason, Virginia's 1776 and 1788 bill of rights author, and James Madison, who took a version of Virginia's 1788 model to Congress in 1789, were both members of the 1776 committee that drew up and approved Virginia's 1776 state bill of rights prior to the Declaration of Independence. This article makes clear that Madison, present at the birth of the American state bill of rights, was under no misapprehension of Second Amendment language and purpose when he placed its "well regulated militia" clause in the middle of a large group of private rights protections as a proposed U.S. Bill of Rights for presentation to Congress in 1789.

Uneven Stevens - Uneven Epstein

Richard Epstein, in an online article, Uneven Stevens, published by the Hoover Institutions' Defining Ideas Journal, praises retired Supreme Court Justice Stevens for some of his decisions, which he describes as "landmarks in the law." According to Epstein, one of his "ablest opinions is the dissent in the gun control case, District of Columbia v. Heller".

On the contrary, Stevens simply makes the historical facts fit his preexisting beliefs in Heller. As an example, the dissent quotes part of a George Mason speech in the 1788 Virginia Ratifying Convention, but the full Mason speech directly contradicts and undermines Stevens' entire dissent. Defining Ideas published my letter following Epstein's article in which I note this historical point and the fact that the law is in a sorry state indeed if the Heller dissent is "one of the landmarks in the law."

2011 Gun Rights Policy Conference

I will be attending the Second Amendment Foundation's 2011 Gun Rights Policy Conference in Chicago this weekend. Hope to meet any of those who follow this blog if you happen to be there. If anyone has Second Amendment history related questions, feel free to say hi and ask away.

Professor Jack Rakove's Intellectual Embarrasments

Jack Rakove, professor of history at Stanford University, who was one of fifteen PhD. holding academic amici supporting Washington DC's gun control laws in the Heller case, made a most interesting comment this Fourth of July. It appeared at The Browser and included a criticism of U.S. Supreme Court Justice Scalia's decision in that case.

"I submitted a brief in the District of Columbia vs Heller case, from three years ago. That was the case in which the Court struck down a 32-year-old handgun ban as incompatible with the Second Amendment. I think there are intellectual embarrassments of the first order in Justice Scalia's opinion."

Those who have read the series Root Causes of Never-Ending Second Amendment Dispute at this blog will be much amused by the professor's claim. As documented in the 24 posts of the Root Causes series, Prof. Rakove's Heller brief brimmed with errors of historical fact and left out the most relevant information for understanding the Second Amendment's intent. It is Prof. Rakove's brief to the Supreme Court that contains "intellectual embarrassments of the first order". There were so many errors of historical fact in the Rakove brief that the historical dissent from Justice Stevens only cited it once, and that was for a point relating to the English Bill of Rights.

The very first post of this blog, which was Part 1 of the Root Causes of Never-Ending Second Amendment Dispute series, documents the first of numerous Rakove intellectual embarrassments in the Heller case.