Notice: New Pages

There are now two new pages linked near the top of this page, Site Map and Post Index. These pages, along with Fisking Index Page, allow readers ease of access to the extensive historical information about the Second Amendment available in the various posts at this blog. Site Map describes each of the four site pages, and Post Index provides direct links to historically significant posts published in the past.
[Updated February 20, 2015]

New Fisking Index Page

NOTICE

A new link, Fisking Index Page, is now located at the top of this home page. It provides easy access to posts for each Second Amendment historical analysis published at On Second Opinion Blog over the last five and a half years. Readers interested in a particular series can now use the Fisking Index to go through the entire set of posts documenting the Second Amendment related historical errors in a particular analyzed work with ease. All of the analysis parts for the professional historians' Heller Supreme Court brief, the two professional historian briefs in the McDonald case, and Supreme Court Justice Stevens' Heller dissent can be directly accessed by simply opening a new tab using the list of linked parts provided in the index.

Enjoy and let others know about this readily available information.

29th Annual Gun Rights Policy Conference Next Weekend in Chicago

The 2014 Gun Right Policy Conference, sponsored by the Second Amendment Foundation and the Citizens Committee for the Right to Keep and Bear Arms, will be held on September 26, 27 and 28 at the Hyatt Regency O'Hare Airport Hotel. Information is available at the Second Amendment Foundation's website.

I will be attending this year and hope to meet any of this blog's followers or others interested in Second Amendment history who happen to be there.

Notice: The SecondAmendmentInfo.com Webpage Is Back Online

   SecondAmendmentInfo.com is back online. All links at On Second Opinion Blog to information on my webpage should now be functional.
   I would like to thank Dan Joseph not only for assistance in getting the webpage back up and running quickly, but also for making it possible for my website to be readily available online.

Notice: The SecondAmendmentInfo.com Webpage Is Down

Notice for those interested in Founding Era Second Amendment information - my webpage, secondamendmentinfo.com is down.

Many of the documentation links at On Second Opinion Blog are to sources and articles at my webpage. For example, links to The Journal on Firearms and Public Policy article, The American Revolutionary Era Origin of the Second Amendment's Clauses, no longer work. Also links to my Heller case analyses of gun control advocates' historical arguments in friend of the court briefs no longer link.

I will be attempting to get a new host for the website soon. Until then, some of the now offline writings may appear at this blog in serialized form as blog posts.

The History of the Second Amendment

Second Amendment History

This most interesting subject is the focus of a program at the National Constitution Center being held tomorrow, June 4, 2014, according to a post at Alan Gura's new blog, Reality-Based Litigation. He is one of three participants in the program.

Alan was the lead attorney in the U.S. Supreme Courts' 2008 District of Columbia vs Heller case. His argument based on historical facts that the Second Amendment was understood as a protection for individual rights prevailed in that case. Reality based litigation and facts go well together.

Two books by the author of On Second Opinion Blog are considered by Alan Gura as "the authoritative books" on the history of the Second Amendment. To see which two books, click here for Alan Gura's History of the Second Amendment program announcement.

[Hat tip to David Hardy's Of Arms And The Law Blog regarding Alan Gura's new blog.]

District of Columbia vs Heller Dissent - Part 6

Justice Stevens' Mangled Beyond Recognition American History
     Not only does Justice Stevens erroneously rely on well regulated militia language provisions as if they back up his Heller dissent argument that the Second Amendment protects state power over the militia, (see Parts 1, 2, 3, 4 and 5) he also relies on other founding era provisions that were always linked with Second Amendment predecessors. The seminal example of such linkage is Article 13 of Virginia's 1776 Declaration of Rights, the first clause of which was examined in Part 3:
"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." [The Origin of the Second Amendment, pp.748-749]
     Article 13, written by George Mason, consists of three distinct parts. The first is a Second Amendment predecessor protecting an armed populace capable of effective defense, the second part protecting against peacetime standing armies that endanger liberty, and the third part declaring government raised forces (the military) subordinate to the "civil power".
     Justice Stevens reliance on the second and third parts of Virginia's Article 13 triad of protections (Mason Triad) to support his "state militias" protecting Second Amendment intent argument is just as illogical as his reliance on its well regulated militia clause due to direct conflict with the understanding of the provisions' framers. They used the language of all three Mason Triad parts to limit the state government. As documented in Part 3, George Mason and Patrick Henry, respectively, when speaking on June 16, 1788 in the Virginia Ratifying Convention, described Article 13 of Virginia's 1776 Declaration of Rights as a provision "which the people, by their bill of rights, declared to be paramount to the power of the legislature", the intent of which was to defend "against the state government". [The Origin of the Second Amendment, pp.436, 437]
     Heller dissent usage demonstrates that Justice Stevens is oblivious to the fact that all three parts of Virginia's Mason Triad are intended as limits on state power, thus, directly conflicting with his state power protecting argument. The Heller dissent not only relies on Virginia's Article 13 Mason Triad as if it supports Justice Stevens' argument, it also relies on Mason Triads with leading well regulated militia provisions adopted by three other states, Delaware, Maryland, and New Hampshire. The full Mason Triads of all four states are quoted in footnote 5 starting on page 5 of the Heller dissent.
     Each of these subsequently adopted Mason Triads varied the language of Mason's Virginia original somewhat. They all dropped the duplicative description of the militia (the body of the people), added an exception of legislative authorization to the second part, and added "at all times" to the limitations on the state in the final subordination of the government's military forces part.
     As an example, Delaware's 1776 Mason Triad, the first after Virginia's to adopt well regulated militia language, stated:
"Sect. 18. That a well regulated militia is the proper, natural and safe defence of a free government.
Sect. 19. That standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the Legislature.
Sect. 20. That in all cases and at all times the military ought to be under strict subordination to and governed by the civil power."
[The Origin of the Second Amendment, p.752]
     Justice Stevens' reliance on these other well regulated militia protecting Mason Triads, just as Virginia's original, is entirely illogical because they were all intended and understood as limits on their state governments, not as descriptions of, guarantees to, or protections for state power.
     All of the eight early states that adopted declarations of rights also indicated they were either a part of the state constitution or a limitation on legislative power, excepting only Virginia's, the first formed. Some of the other states specified both points within their constitutions. In Virginia's case, the period framers later indicated that its declaration of rights was part of the constitution and understood as a limit on state power.
     New Hampshire's "Bill of Rights" was "Part I" of its constitution, and "The Form of Government" was "Part II". State constitutions are binding on state governments just as they are upon the people who authorize them. New Hampshire's constitution additionally specified a limitation on the state government relative to rights and privileges contained within it, a provision very similar to the Delaware provision quoted directly below. [F. N. Thorpe, Federal and State Constitutions, Vol. 6, pp.2453, 2458, 2469]
     Delaware's 1776 State Constitution, Article 25, specifically limited the legislature relative to the declaration of rights as follows:
"The common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution, and the declaration of rights, &c., agreed to by this convention."
[Thorpe, Vol. 1, pp.566-567]
     Maryland's Declaration of Rights, Article XLII, limited the legislative branch as follows:
"That this Declaration of Rights, or the Form of Government, to be established by this Convention, or any part or either of them, ought not to be altered, changed or abolished, by the Legislature of this State, but in such manner as this Convention shall prescribe and direct." [The Origin of the Second Amendment, p.761]
     The above sources indicate that all four of the Mason Triads quoted in note 5 of the Heller dissent were intended as limitations on their respective state governments, not as descriptions of state power over military matters. They were constitutional level restraints on state power that directly contradict the use made of them by Justice Stevens.
     Once again, Justice Stevens is documented using period sources as support for his Heller dissent argument that, to the contrary, directly refute his interpretation of the Second Amendment and its immediate predecessors. His constant reliance on period sources that undermine the Heller dissent argument is an intellectual embarrassment of the first order. All of the period evidence that Justice Stevens quotes in Heller, when examined carefully and compared to the understanding of the founders, disproves his argument the Second Amendment was intended to protect state militia power because he completely ignores American historical reality and the founders' period usage.
     The fact is that each of the eight state bills of rights developed during the Revolutionary Era had its own Mason Triad protecting the same three concepts as Virginia's Article 13, and all were intended to protect against violation by state government. Each included a leading Second Amendment predecessor, a limitation on peacetime standing armies that endanger liberty, and ended with a provision subordinating government raised force to the civil power.
[Mason Triads were first identified in The Founders' View of the Right to Bear Arms. They are available online in appendices of The American Revolutionary Era Origin of the Second Amendment's Clauses, which was published in the 2011 issue of The Journal on Firearms and Public Policy.]
     Mason Triads, with their leading state bill of rights Second Amendment predecessors, limited state governments at the constitutional level. They protected the people by assuring an armed population capable of defense, checked peacetime standing armies, and guaranteed any forces raised by state governments were, both in law and in reality, subordinate to the the very people who authorized the government through their state constitution.
[In the next part, the four other Revolutionary Era Mason Triads will be examined, further demonstrating Justice Stevens Heller dissent to be mangled beyond recognition American History.]

District of Columbia vs Heller Dissent - Part 5

Justice Stevens' Crashed & Burned American History

      In Parts 1 through 4 of this series, Justice Stevens' erroneous view of well regulated militia language in Founding Era American bill of rights context is documented. The following Heller dissent description and quote of Connecticut's 1782 "Acts and Laws Regulating the Militia" demonstrate Justice Stevens' view of well regulated militia language in early state law context to be a misinterpretation of common Revolutionary Era terminology, contradicting the dissent "state militias" argument yet again.
"The language of the [Second] Amendment's preamble also closely tracks the language of a number of contemporaneous state militia statutes, many of which began with nearly identical statements. . . .
"Whereas the Defence and Security of all free States depends (under God) upon the Exertions of a well regulated Militia, and the Laws heretofore enacted have proved inadequate to the End designed."" [Heller Dissent, note 6, pp.6-7]
     Since the law mentions "Laws heretofore enacted" regarding "a well regulated Militia," Connecticut clearly had a state militia institution, or state regulated militia, prior to the passage of this 1782 law. However, the prior laws did not result in "a well regulated Militia" because those laws "proved inadequate to the End designed". The end designed was a well regulated militia for defense. Well regulated militia is used in Connecticut's law as a performance dependent description of the militia related to their effectiveness or capability for defense. It is not used as a description of state government authority to institute or regulate the militia, which is Justice Stevens' view of the language.
     If, as Justice Stevens believes, well regulated militia in this law describes a state regulated militia or state militia institution, then the statement in the Connecticut law makes no sense whatsoever. How can there be previous laws establishing and regulating the militia by the state and there not be a state regulated militia or state militia, if that is what well regulated militia signifies? Any establishment or regulation of the militia by state law results in a state militia. Justice Stevens quotes this well regulated militia example to link the period language to his "state militias" view of its meaning. The dissent use of this historical example indicates Justice Stevens fundamentally misunderstands common founding era usage of militia and well regulated militia terminology. Examination of other period sources further clarify this fact.
     George Mason, author of the Second Amendment's 1776 and 1788 predecessors, described the militia in the Virginia Ratifying Convention as follows:
"I ask, Who are the militia. They consist now of the whole people, except a few public officers." [The Origin of the Second Amendment, p.430]
     In The Federalist #29 (first published as #35 in early 1788), Alexander Hamilton suggested what course of action the Federal Government should take under its new militia powers after ratification of the Constitution. Hamilton provides three different descriptions of the militia, all of which represent typical period usage.
"the great body of the yeomanry and of the other classes of the citizens"
"the people at large"
"the whole nation"
[The Origin of the Second Amendment, pp.197-198]
     The above examples indicate that the founders often equated the militia and the people. The following excerpt from the same number of The Federalist clearly combines this period understanding with well regulated militia language used as a typical period performance standard describing the capability of the militia for defense.
"To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions as often as might be necessary, to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss."
[The Origin of the Second Amendment, p.197]
     Hamilton uses well regulated militia as a description of the militia regarding their "degree of perfection" in military exercises relating to defense, a performance standard. This is the same general sense it is used in the Connecticut militia law quoted by Justice Stevens. A performance standard understanding of well regulated militia language in the Connecticut militia law makes sense because "well regulated" relates to the effectiveness of the militia, an inherent character of the militia based on their capability, not to state government authority to establish or regulate the militia.
     Even in state militia law context, where the state government was understood to have regulatory authority over the militia, well regulated militia language was not used to describe that fact. Rather, it was used to describe the militia themselves based on their effectiveness for the "End designed", which was defense.
     Regardless of context - whether Federal Bill of Rights related (see Parts 1 and 2), Revolutionary Era state bill of rights related (see Parts 3 and 4), state militia law related, or Federal militia law discussion related (above) - the period sources examined indicate that well regulated militia language was not used to signify state or government regulation of the militia. The only proofs offered by Justice Stevens in the Heller dissent that his view of well regulated militia language is consistent with that of the founders' are his own assertions to that effect. Overt Heller dissent reliance on any and every period well regulated militia reference as support for its argument that the Second Amendment's first clause was intended to protect "state militias" is contradicted by the period evidence. The founders understood the militia to be the people and "well regulated" to simply mean the militia were capable of effective defense.
     Every period source with well regulated militia language quoted in the Heller dissent by Justice Stevens actually contradicts his interpretation of the Second Amendment's first clause because he employs the language contrary to the founders' understanding of it.

[In Part 6, the state bill of rights provisions quoted in the Heller dissent will be examined to further document Justice Stevens' crashed and burned American history.]

The District of Columbia vs Heller Dissent - Part 4

Justice Stevens' Completely Off-The-Rails American History

 Updated October 20, 2016

      As documented in Part 3, Justice Stevens' Heller dissent is in direct conflict with the view of George Mason and Patrick Henry, who developed and adopted the Article 13 well regulated militia clause of Virginia's 1776 Declaration of Rights. Related George Mason writings leading up to Virginia's Declaration also indicate that Justice Stevens is entirely wrong about the intent of the well regulated militia language later incorporated into the Second Amendment. The historical background of the period and context of Mason's writings further confirm the conflict between the founders' view and the Heller dissent historical argument.

      The Parliament of Great Britain had declared a right to bind Americans in all cases whatsoever in 1768. In May of 1774, two years prior to adoption of Virginia's Declaration of Rights, Britain used military force to close the port of Boston as punishment for the Boston Tea Party and later revoke the Massachusetts Charter, resulting in the colony's entire civil society being made subservient to military rule under British government officials. By mid1774, the people in all of the American colonies had to decide whether to accept such extravagant claims of power and related government military action as legitimate, or if not, what to do about it.

[See The Founders' View of the Right to Bear Arms, pp.27-50 for history and citations not specified in this Part.]

      George Mason, along with Patrick Henry, George Washington and other Virginia patriots met at Mount Vernon on August 30, 1774, to address these issues. As a result, the attendees encouraged voluntary self-embodying defensive associations at the local level in their home counties. Mason promoted the Fairfax Independent Company of Volunteers, and Henry was involved with the Hanover Volunteers. Less than a month after the Mount Vernon meeting, the Fairfax Volunteers associated for defense:

"At a Meeting of a Number of Gentlemen & Freeholders of Fairfax County in the Colony of Virginia, on Wednesday the 21st: Day of September 1774, George Mason Esqr. in the Chair, the following Association was Formed & entered into.

. . . we the Subscribers . . . being sensible of the Expediency of putting the Militia of this Colony upon a more respectable Footing, & hoping to excite others by our Example, have voluntarily freely & cordially entered into the following Association . . .

That we will form ourselves into a Company, not exceeding one hundred Men, by the Name of The Fairfax independent Company of Voluntiers, making Choice of our own Officers; . . . That we will meet at such Times & Places in this County as our said Officers . . . shall appoint & direct, for the Purpose of learning & practicing the military Exercise & Discipline . . . furnished with a good Fire-lock & Bayonet, Sling Cartouch-Box, and Tomahawk. And that we will, each of us, constantly keep by us a Stock of six pounds of Gunpowder, twenty pounds of Lead, and fifty Gun-flints, at the least.”

[Mason Papers I, pp.210-211]

      Within four months of The Fairfax Independent Company voluntarily associating for defense against government tyranny, George Washington wrote there were independent companies of militia in many counties of Virginia.

      The Fairfax County Committee of Safety, of which Mason and Washington were members, passed a resolution in mid-January recommending the male inhabitants age 16 to 50 self-embody as local militia companies. This resolution described the associators as a well regulated militia, terminology that was copied from a Maryland resolution passed the previous month recommending the same action to Maryland's inhabitants. By early February, Mason had incorporated the well regulated militia language into his Fairfax County Militia Plan:

"Threatened with the Destruction of our antient Laws & Liberty, and the Loss of all that is dear to British Subjects & Freemen . . . firmly determined, at the hazard of our Lives, to transmit to our Children & Posterity those sacred Rights to which ourselves were born; and thoroughly convinced that a well regulated Militia, composed of the Gentlemen, Freeholders, and other Freemen, is the natural Strength and only safe & stable security of a free Government . . .WE the Subscribers, Inhabitants of Fairfax County, have freely & voluntarily agreed, & hereby do agree & most solemnly promise, to enroll & embody ourselves into a Militia for this Country, intended to consist of all the able-bodied Freemen from eighteen to fifty Years of Age, under Officers of their own Choice; . . .And we do Each of us, for ourselves respectively, promise and engage to keep a good Fire-lock in proper Order, & to furnish Ourselves as soon as possible with, & always keep by us, one Pound of Gunpowder, four Pounds of Lead, one Dozen Gun-Flints, & a pair of Bullet-Moulds, with a Cartouch Box, or powder-horn, and Bag for Balls. . . . And that we will always hold ourselves in Readiness, in Case of Necessity, Hostile-Invasion, or real Danger, to defend & preserve to the utmost of our Power, our Religion, the Laws of our Country, & the just Rights & Privileges of our fellow-Subjects, our Posterity, & ourselves, upon the Principles of the English Constitution."

[Mason Papers I, pp.215-216]

      Self-embodying voluntary defensive associations, described in well regulated militia terms, began to spread across the American colonial landscape during this period. These activities originated well before any hostilities of the American Revolution and over a year prior to Mason's inclusion of well regulated militia language in Article 13 of America's first state declaration of rights.

      Mason and other period Americans used well regulated militia language prior to the Revolutionary War to describe the people taking up their own arms and self-embodying for defense against government troops and officials who were destroying civil liberty and endangering free government. Mason's later inclusion of this commonly used period language in Virginia's Declaration of Rights as a limit on state power indicates that Article 13 was understood as assuring the right of the inhabitants to self-embody for defense against tyranny. The essential prerequisite of the people taking up their own arms to self embody for defense against government misuse of force, and inherent in the very concept of a well regulated militia, is the people's possession and use of their own arms, which was understood as protected by Article 13.

      Justice Stevens' Heller dissent argument is that the well regulated militia language of Virginia's Article 13 related to the state government's authority and power over its militia institution. That view directly conflicts with the author of the provision, George Mason, and the patriots who adopted it. The founders' view was exactly the opposite, that the Article 13 well regulated militia language was a provision “paramount to the power of the legislature” protecting a self-embodying militia of the people “against the state government”, according to George Mason and Patrick Henry, respectively, as documented above and in Part 3 below.

[In Part 5, Justice Steven's lack of understanding regarding Founding Era militia usage will further demonstrate the Heller dissent historical arguments to be completely off the rails American history.]

The District of Columbia vs Heller Dissent - Part 3

Justice Stevens' Off Track

American History 

     In addition to the sources presented in Parts 1 and 2 of this series, there are others from the 1788 Virginia Ratifying Convention proving Justice Stevens' Heller dissent to be in error regarding Second Amendment intent. The founders who developed and adopted the Amendment's immediate predecessor viewed it in a completely different light than Justice Stevens, a fact that is evident from their bill of rights discussion within the convention.
     On June 16, 1788, Patrick Henry and George Mason both gave speeches regarding the need for a federal bill of rights. Henry set up their upcoming arguments by reading six specific provisions from Virginia's 1776 Declaration of Rights: 
"Mr. Henry moved to read from the 8th to the 13th article of the declaration of rights; which was done." 
[The Origin of the Second Amendment, p.434]
     Those specific articles of Virginia's state bill of rights included predecessors of protections later included in the First, Second, Fourth, Fifth, Sixth, Seventh, and Eighth Amendments to the U.S. Constitution. The well regulated militia language of Virginia's ratifying convention Article 17, which Justice Stevens erroneously conflated, was copied verbatim by George Mason from this 1776 Virginia Declaration of Rights Article 13 original: 
"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;"
 [The Origin of the Second Amendment, p.434]
     Interestingly, both Patrick Henry and George Mason were members of the drafting committee in the Revolutionary Era convention that adopted this 1776 Virginia well regulated militia clause as part of America's first state bill of rights over a decade earlier. Mason was acknowledged as its author by the other delegates. In the modern dispute over meaning of well regulated militia clause language in American bills of rights, the comments of Mason and Henry are essential for determining period understanding because they originated the language in 1776 and utilized what they originated again later verbatim in 1788 as model U.S. Bill of Rights language. Their 1788 bill of rights comments directly contradict the Heller dissent Second Amendment intent argument.
     Mason spoke first on the bill of rights subject, explaining his understanding of Virginia's state bill of rights and the general purpose of the specific provisions Henry had read shortly before, which included the original well regulated militia clause: 
"there were certain great and important rights, which the people, by their bill of rights, declared to be paramount to the power of the legislature. . . .it was necessary that the great rights of human nature should be secure from the encroachments of the legislature, . . ."
[The Origin of the Second Amendment, p.436]
     Henry followed Mason indicating the general need for the protections he had read to be added in a federal a bill of rights: 
"You have a bill of rights to defend you against the state government, . . . and yet you have none against Congress," 
[The Origin of the Second Amendment, pp.437-438] 
     Patrick Henry and George Mason both understood Virginia's 1776 well regulated militia clause as a restriction on state government power. Prior to making the above statements in Virginia's ratifying convention, they had already inserted an exact quote of that clause into their Antifederalist committee model U.S. Bill of Rights, which was developed by assembling existing state bill of rights limitations on state government into a new Federal bill of rights of limitations on the power of the proposed Federal Government.
[See The Founders View of the Right to Bear Arms, pp.61-66 for more detailed history and citations regarding the origin of Virginia's well regulated militia clause.] 
     Contrary to the view of the framers who originated the well regulated militia clause in 1776, and who described and adopted it again in 1788, Justice Stevens, as documented in Part 1, conflated the clause's intent into protection for state authority. Early in his dissent, after quoting the Second Amendment's first clause, Justice Stevens directly quotes Virginia's 1776 language as evidence that the founders' intent matches his understanding of protecting “state militias”: 
"“A well regulated Militia, being necessary to the security of a free State”
The preamble . . . is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneously with the Declaration of Independence.5 Those state provisions highlight the importance members of the founding generation attached to the maintenance of state militias:"

[Heller dissent, pp.5-6] 
"5 The Virginia Declaration of Rights ¶ 13 (1776) provided: "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:"
[Heller dissent, p.5, note 5]

     The Heller dissent uses the 1776 Virginia Article 13 well regulated militia language to support its argument the Second Amendment's militia clause was intended to protect state power. The framers responsible for its development and inclusion in Virginia's 1776 Declaration of Rights described the purpose of Article 13 as exactly the opposite, a limit on state power. This is another clear example demonstrating the direct conflict between Justice Stevens' opinion, expressed in his Heller dissent, and the documented views of the “founding generation” he bends into alignment with his own beliefs.
     The framing founders responsible for the 1776 language understood it as a limit on state power protecting a militia composed of the people, or in other words, protecting an armed populace. These drafting founders used the 1776 language again in the 1788 immediate predecessor of the Second Amendment with the clear intention of limiting the Federal Government in the same way it limited the state government, by protecting a militia of the people. Justice Stevens is totally confused about the meaning of this language, and his Heller dissent arguments are not only factually unfounded, but directly contradicted by the period evidence.

[In Part 4, George Mason's use of well regulated militia language in Virginia prior to writing the concept into that state's bill of rights is examined and documented, further demonstrating the off-track nature of Justice Stevens' Heller dissent.]

The District of Columbia vs Heller Dissent - Part 2

Justice Stevens' Sidelined

American History 

[Updated May 26, 2015]
Part 1  documented Justice Stevens' Heller dissent Second Amendment intent argument is founded on a conflation error because it directly conflicts with the statements of George Mason, the Ratification Era framer of its two-clause language. The dissent also linked the intent of Mason's Virginia Ratifying Convention Second Amendment proposal to those of North Carolina and New York, extensions of the conflation error to those sources.

     The Second Amendment proposals of all three states were based on the original two-clause Second Amendment version in George Mason's U.S. Bill of Rights model. The Virginia convention's sole alteration of Mason's language was dropping the word “to” before “bear arms” in its first clause. [1] North Carolina adopted Virginia's proposals verbatim and refused to ratify the Constitution until they were added. [2]
1 [See Part 1 for Virginia's version and below for Mason's original.]
2 [The Origin of the Second Amendment, pp.503-506]
     New York's Second Amendment predecessor, found in its ratification declaration of rights, was very similar to the other two states. It was based directly on Mason's original model. This resulted from George Mason providing New York's Antifederalist leaders a complete copy of his model for the U.S. Bill of Rights developed early in the Virginia Ratifying Convention, which met from June 2 through June 27, 1788. 

     The documents addressed below consist of Mason's U.S. Bill of Rights model [3], a partially developed list of Mason's "other" amendments [4], and letters from Patrick Henry, William Grayson, and George Mason, Virginia Convention Antifederalist leaders, to John Lamb, Antifederalist leader in New York City. These sources independently confirm the conflation error Justice Stevens' Heller dissent is founded upon.
3 [The Origin of the Second Amendment, pp.388-390]
4 [Mason Papers, Vol. III, pp.1055-1057]
     John Lamb sent letters to Mason, Henry, and Grayson seeking cooperation on a bill of rights and other amendments to the U.S. Constitution between Antifederalists in the New York and Virginia conventions. These were delivered on June 7, 1788, and all three Virginians responded affirmatively to Lamb on June 9. Mason, chairman of the amendments committee, included the complete model Bill of Rights and partial list of the amendments then under development with his letter. These letters and documents were transmitted to Lamb by Eleazer Oswald, the same special courier Lamb employed to hand deliver his requests regarding cooperation to the Virginians.

[For historical facts not specifically cited in this part, see the history and citations regarding Virginia-New York Ratifying Convention amendment cooperation found in The Founders' View of the Right to Bear Arms, pp.131-147]
     Patrick Henry's letter described the documents sent to Lamb as follows: 

"We have concluded to send you by Colo. Oswald a copy of the Bill of Rights & of the particular Amendments we intend to propose in our Convention". 
[Mason Papers, Vol. III, p.1071 note]
     The Bill of Rights was finalized and consisted entirely of provisions taken from existing state declarations of rights. The particular amendments list was still under development and related to alterations of specific parts of the proposed U.S. Constitution.
     William Grayson emphasized the incomplete nature of the particular amendments list:
"some of our proposed amendments are finished in the Committee; the others will be forwarded as soon as agreed on". 
[Mason Papers, Vol. III, p.1071 note]
     The particular or "other" amendments list sent to Lamb consisted of thirteen unnumbered provisions, five of which were not even included in the final twenty article version Patrick Henry introduced in Virginia on June 24. The amendments sent on June 9 were very much in a developmental state because analyzing, discussing and agreeing upon possible amendments to particular Constitutional provisions took considerable time and continued throughout Virginia's month long convention.
     That the Bill of Rights was completed very early in Virginia's convention, probably the first day or two, is not surprising because Mason himself had described the speed with which one could be developed the previous year in the Federal Convention:
“He wished the plan had been prefaced with a bill of rights, and would second a motion, if made for the purpose. It would give great quiet to the people, and, with the aid of the state declarations, a bill of rights might be prepared in a few hours". 
[The Origin of the Second Amendment, p.12]
     Mason's 1788 Bill of Rights sent to Lamb fit this description exactly as it was essentially a copy of the 1776 Virginia Declaration of Rights with some added provisions from other state declarations.
     The Bill of Rights model's original two-clause Second Amendment predecessor sent to John Lamb on June 9 read: 
“17. 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]
     Mason's June 9 letter to Lamb mentioned several parts of the Constitution to be addressed by his amendments committee in the future. This information, just as that in Part 1, establishes the direct conflict between the Founders' understanding and the Heller dissent argument regarding Second Amendment intent due to conflation.
"The Judiciary, the exclusive Legislative Power over the ten Miles Square, and the Militia, are Subjects to which our Attention will next be turned, and we shall communicate the Result of our Deliberations with all possible Dispatch." 
[Mason Papers III, p.1058]
     Mason and the amendments committee members understood they had addressed no amendments of the Constitution's militia powers as of June 9, and that none were included among the documents sent to John Lamb. The fact that the original two-clause Second Amendment predecessor was sent to Lamb as part of the model Bill of Rights on that date clearly indicates it was not understood by its framers as relating to amending the militia powers, which is the erroneous view advanced in Justice Stevens' dissent. These facts document and further exemplify the direct conflict between the founders' view of the Second Amendment and that advanced by the dissenting Heller justices.
     The period evidence presented here is entirely consistent with that in Part 1, and it independently verifies the conflation error the Heller dissent is based upon. As a result of this erroneous historical foundation, the dissenting Heller justices treat all period historical sources with well regulated militia language as support for their argument.
     Every Revolutionary and Ratification Era bill of rights predecessor of the Second Amendment with well regulated militia language is presented somewhere in the Heller dissent as supporting its opinion of intent. Since the dissent view of period well regulated militia language is based on erroneous conflation, use of closely related historical examples results in repeated conflation errors. The only evidence offered to verify the dissenting justices assertions regarding intent are appeals to their own authority, another type of fallacious argument. The Heller dissent view of Second Amendment intent is an interwoven series of fallacious appeals to its own authority based on error of fact due to conflation. The end result is a circular argument in which the very language at the heart of Second Amendment dispute, historical well regulated militia sources, are repeatedly offered as proof the dissent is factually correct.
     The Second Amendment intent argument in Justice Stevens' Heller dissent is entirely undermined by relevant period historical sources, which demonstrate it is founded on factual error.
[In Part 3, the understanding of Second Amendment framer George Mason regarding well regulated militia language will be examined, further documenting the sidelined American history nature of Justice Stevens' Heller dissent.]

The District of Columbia vs Heller Dissent - Part 1

Justice Stevens' Train Wreck

of American History

     The Supreme Court's 2008 District of Columbia vs Heller case resulted in a 5-4 split decision. Justice Scalia, writing the majority opinion, held that the Second Amendment was intended to protect the right of individuals to keep and bear arms. Justice Stevens penned a historically related dissent supported by Justices Breyer, Ginsburg, and Souter arguing it protected something entirely different, the militia institutions of the states. Justice Breyer, commenting on the Heller dissent in December of 2010, stated that "historically, the dissenters were right. And I think more of the historians were with us." [1] This last September, Justice Ginsburg, referencing the dissent indicated that her "view of the Second Amendment is one based on history." [2] The problem for the dissenting Heller justices is that the historical sources they quote not only fail to support their arguments, but instead directly contradict and prove them to be completely wrong.

   To begin unraveling the Heller dissenters strongly held views, the first point to determine is what specific period sources Justice Stevens and colleagues provide demonstrating the Founders understood the Second Amendment's purpose as they do? The sole period historical link in the dissent between the Second Amendment and any founder's understanding that it was intended to protect state militia authority is a quote of George Mason speaking in the Virginia Ratifying Convention on June 14, 1788. As Mason was chairman of the convention's Antifederalist amendments committee, he was the perfect choice for determining such understanding. [3] He developed the Bill of Rights and list of twenty "other" proposed amendments that were introduced by Patrick Henry and adopted by the Virginia Ratifying Convention.[4] North Carolina adopted the language of the Virginia proposals verbatim, [5] and New York included very similar declaration of rights provisions within its ratification based directly on Mason's proposals.[6] Thus, George Mason was author of the state ratifying convention model for the U.S. Bill of Rights - the ideal founder to quote regarding the intent of its provisions.

[3] The Founders' View of the Right to Bear Arms, p.132]

[4] The Origin of the Second Amendment, pp.450, 456-462]

[5] Origin, pp.503-508]

[6] Origin, pp.480-483; The Founders' View, pp.149-153]
     The subject under discussion by the Virginia Convention delegates on June 14 was the Constitution's Article 1, Section 8 powers - in this specific case, the militia powers. In order to link its understanding of the Second Amendment to that of Mason, the Heller dissent presents this selection from his speech warning that the states could be deprived of power to arm the militia under the new U.S. Constitution: 

“The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless—by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has the exclusive right to arm them.” 
[Heller Dissent, p.20]
     Following this quote, the dissent discusses the two-clause Second Amendment predecessors from the last three state ratifying conventions of 1788 as if they relate to the militia powers subject Mason was discussing: 
"But a number of States did propose to the first Federal Congress amendments reflecting a desire to ensure that the institution of the militia would remain protected under the new Government. The proposed amendments sent by the States of Virginia, North Carolina,and New York focused on the importance of preserving the state militias and reiterated the dangers posed by standing armies." 
[Heller Dissent, p.20]
     The next quote appearing in the dissent is Virginia's proposed Bill of Rights Second Amendment predecessor, described thus in the dissent: 
"The relevant proposals sent by the Virginia Ratifying Convention read as follows: “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.""

[Heller Dissent, p.21]
     Members of Congress developed the Second Amendment's clauses directly from this 1788 predecessor language. The dissenting justices clearly believe their Mason quote directly related to it. However, the dissenters' Mason quote actually contradicts their views. Why? Because the dissent ignores the fact that Mason did not propose the Second Amendment predecessor in his June 14th speech. In fact, he never mentioned any Second Amendment related predecessor or language in relation to the militia powers subject under discussion that day. He did, however, propose an entirely different amendment directly addressing the subject of his speech that the dissent simply ignored.
     This is the militia powers amendment Mason proposed on June 14: 
"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"

[The Origin of the Second Amendment, p.402. Mason's entire June 14 speech on this subject can be found on pp.400-402 in The Origin of the Second Amendment.]
     The dissenting justices not only overlooked Mason's actual proposal from June 14, above, they also completely ignored Article 11 in Mason's list of "other" amendments adopted by the Virginia Ratifying Convention that directly related to his militia powers proposal and speech: 
"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 to provide for the same."

[The Origin of the Second Amendment, p.460]
     George Mason's June 14, 1788 speech not only fails to support the dissent view of Second Amendment's intent, it proves the Heller dissent to be completely wrong about its intent. Mason's state militia power proposal of that date directly related to Article 11 of the "other" amendments proposed by Virginia, not to the Second Amendment predecessor. Since Mason prepared all of Virginia's amendments, and because he indicated the Article 11 related protection was the only change needed to the militia arming powers, it is clear the Second Amendment proposal from Virginia was not understood by him as protecting state militia authority. In an erroneous attempt to demonstrate Mason's view matched those of the dissenting Heller justices, the dissent simply appropriated the clear intent of Virginia's Article 11 militia powers amendment and reassigned it to the entirely separate and distinct Second Amendment predecessor found in Virginia's list of Bill of Rights protections. Mason's speech makes no such connection and, in fact, contradicts any such link.
     Mason's quote in the Heller dissent is its sole piece of period evidence indicating the Founders and dissent share the same view of Second Amendment intent. The dissenting justices' misinterpretation of their Mason speech snippet conclusively demonstrates that the dissent view of Second Amendment intent is founded on an erroneous conflation of intent with an entirely different amendment. Mason's complete comments on June 14, 1788, demonstrate the Heller dissent historical arguments to be based on a foundation of factual error.

[The next post will examine and document an entirely separate series of historical sources from George Mason's activities in the Virginia Ratifying Convention that further document Justice Stevens' Heller dissent to be a train wreck of American history.]