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.]