On Second Opinion Blog

The History of the Second Amendment's Clauses

2012-01-02T01:07:00.003-05:00

Now that my history of the Second Amendment, The American Revolutionary Era Origin of the Second Amendment's Clauses, is easily available online, it is my hope that the Second Amendment dispute, which is the mother of all ideological divides, might start to wane. Public policy decisions should be based upon facts - all of the relevant facts - not just a selection of historical information that results in a plausible sounding argument that is directly contradicted by extensive, relevant information.

As noted in a previous post, Prof. Jack Rakove criticized Justice Scalia's Heller decision last July 4th as containing "intellectual embarrassments of the first order". He did not seem to realize there were such embarrassments in his own brief to the Supreme Court. In December of 2010, Prof. Pauline Maier indicated that citing the founders and framers to justify striking down state and local gun laws would be "an abuse of history." She strongly supported the position taken in the historians' brief and appeared not to recognize mistakes within it.

It appears the historians involved in the Heller brief are totally unaware of the errors that have been documented in their presentation to the Supreme Court. I have decided to contacted each of those still teaching through their university email addresses to let them know about the new article, pointing out that it documents extensive information overlooked in their brief. The article itself links to documentation of factual errors in the brief.

Twelve of the historians were contacted on Dec. 31st. Two, Profs. Lois Schwoerer of George Washington University and John Shy of the University of Michigan are retired, and therefore have no university email readily available, and, unfortunately, Prof. Higginbotham passed away in 2008. So far I have received a reply from one of the historians thanking me and indicating an interest in reading the article.

On two previous occasions long ago I attempted to contact notable persons who supported gun control in an attempt to establish a dialogue over what the facts about the Second Amendment actually were. One was a media personality, the other a retired state superior court judge. In the first case no answer was returned, and in the second, I received a mass of literature published by Handgun Control. Those were very disappointing results.

We will see what the new year brings with this initiative.

Happy New Year!

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

2011-12-15T21:44:00.005-05:00

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 and can be read here.

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" langauge 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

2011-10-21T01:50:00.003-04:00

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

2011-09-21T22:06:00.003-04:00

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

2011-09-21T17:00:00.004-04:00

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.

Historians Try to Sell Brooklyn London Benjamin Franklin Bridge to U.S. Supreme Court - Part 6

2010-04-17T19:17:00.005-04:00

Contradictions and Errors in the Pennsylvania History McDonald Amicus

The historians brief attempts to convince the Supreme Court Justices that their unanimous Heller case understanding that Section XIII of Pennsylvania's 1776 Declaration of Rights ("that the people have a right to bear arms") related to individual rights was in error.

"As the Heller majority and both dissents recognized, the 1776 Pennsylvania Constitution provides insight into the then-prevalent conception of the right to bear arms. . . . Three clauses of its [Pennsylvania's] Declaration of Rights in particular warrant attention, the first, eighth, and thirteenth, all of which deal with individual or collective self-defense:" [p.18]

The historians then quote the following from Pennsylvania's Declaration of Rights:

"I. THAT all men are born equally free and independent, and have certain natural, inherent and unalienable Rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.
VIII. THAT every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service, when necessary, or an equivalent thereto . . . Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent.
XIII. THAT the people have a right to bear arms for the defence of themselves and the State; and as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up: And that the military should be kept under strict subordination to, and governed by, the civil power." [pp.18-19]

The first assertion from the historians relating to the language they have quoted is as follows:

"This language reflects the Presbyterian complaints against the Quaker government’s perceived failure to provide for the common defense over the previous twenty years." [p.19]

The quoted language could not be a complaint against Pennsylvania's Quaker government for several reasons, the least of which is that Pennsylvania did not have a "Quaker government." The colony had a representative assembly, and Quakers, while a large minority, had not been the majority population in the colony for some time. Quakers were, however, able through political alliances to prevent the adoption of militia laws like those of the other colonies during the described period as well as throughout the prior colonial history when it was more directly under Quaker control. As a result, colonial Pennsylvania never required men to perform militia duties or obtain arms for such purposes, unlike the other American colonies that all passed militia laws in colonial times.

Pennsylvania copied most of the language in Sections I, VIII, and XIII from Virginia's Declaration of Rights. All Revolutionary Era Declarations of Rights borrowed or copied provisions from the declarations of earlier states except for Virginia, which produced the first such declaration. Thus, Virginia and Pennsylvania, the second state to produce a declaration of rights, were often borrowed from or copied by later states. The language quoted by the historians from Pennsylvania's Declaration of Rights is not unique to Pennsylvania because much of it was copied from Virginia, and all of Pennsylvania's was copied verbatim by Vermont. Pennsylvania's provisions were also borrowed by other states. These facts contradict the historians' assertion since the language clearly does not relate to any Quaker specific Pennsylvania history in these other states.

Examining the provisions of Section XIII specifically, it is evident that these clauses are not complaints against Quakers, but rather complaints against the British. Quakers never attempted to raise an army in time of peace, but the British actually did so in Massachusetts. Suggesting otherwise would be inane. Similarly, Quakers were the last persons on the planet to have any interest in making the military superior to the civil power, but that was exactly what the British had done in Massachusetts. As far as the people's right to bear arms for defense, Quakers never prevented any of the people from defending themselves, their families, their communities, or the colony. However, the British had been making every effort for a considerable time to prevent the inhabitants under their military control in Massachusetts from possessing powder or arms (a few Loyalists excepted), thus making it impossible for the people there to protect themselves or the colony.

Not only have the historians confused the Quakers and the British, but they have confused the power limiting intent of Section XIII bill of rights protection with the idea that the Section somehow authorized the government to control arms. This is evident in the very next sentence of the brief:

"Their [Presbyterians] predominant concern—as reflected in the [quoted] text—was establishing a coherent system of community defense so that the government could protect the people’s natural rights." [p.19]

Nothing in the language of the three sections quoted in the brief has anything to do with "establishing a coherent system of community defense so that the government" could take actions. The historians entirely overlook the stated purpose of these Declaration of Rights provisions. The title of the Declaration of Rights indicates that purpose as follows:

"A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH, OR STATE OF PENNSYLVANIA" [OSA, p.752]

In other words, the quoted language represents rights of the inhabitants, not establishment of government power over defense. This is made even more clear by reference to Section 46 of Pennsylvania's FORM OF GOVERNMENT, a major portion of Pennsylvania's Constitution that the historians fail to mention even exists:

"Sect. 46. The declaration of rights is hereby declared to be a part of the constitution of this commonwealth, and ought never to be violated on any pretence whatever." [Thorpe, V, p.3091]

This provision and the title of the Declaration of Rights clarify that the historians are taking the quotes out of their actual bill of rights related context, which is a limit on government authority, and using them instead as if they confer authority on the government over duties relating to arms and defense. That this is a major blunder is further clarified by reference to Section 5 of the Form of Government:

"Sect. 5. The freemen of this commonwealth and their sons shall be trained and armed for its defence under such regulations, restrictions, and exceptions as the general assembly shall by law direct, preserving always to the people the right of choosing their colonels and all commissioned officers under that rank, in such manner and as often as by the said laws shall be directed." [Thorpe, V, p.3084]

It cannot be more clear that it is Section 5 of the Pennsylvania Constitution's Form of Government that establishes "a coherent system of community defense so that the government" can take defensive actions, not any of the Declaration of Rights provisions. The historians have grossly confused the purpose of the government limiting Declaration of Rights protections they quote in an effort to tie the meaning of the Article XIII arms related clause to government authority.

There is no doubt that Pennsylvania's Quaker history influenced some of the state's Declaration of Rights language, but not in the way portrayed by the historians. The "people have a right to bear arms" language of Section XIII relates to longstanding activities of the people of Pennsylvania, not to the new government's authority. Remember, Pennsylvania's colonial government never required anyone to defend the colony or possess arms for that purpose. Thus, throughout the colony's history, all organized defensive activities, of which there were a considerable number, were carried out by individuals who voluntarily associated for defense when necessary. This defensive activity was possible because private arms possession and use were widespread in the colony, not because the government was providing direction under law for defense.

Individual men took up their privately owned arms, with which they could defend themselves, and joined with other individuals for organized defense. They formed companies of men, elected officers, and trained themselves for mutual defense. [see FVRBA, pp.15-25] It is these private arms possession related activities that the Section XIII language refers to. In fact, the people of Pennsylvania had been continuously engaged in defending their natural rights against the actions of British government officials and forces for over a full year before the text the historians quote was ever written.

Thus, the belief of the historians that the quoted language represents complaints against Quaker government in Pennsylvania or is intended as support for government authority rather than as provisions that are actually a limit on government authority is historically inaccurate and unsupportable.

Pennsylvania's 1776 Constitution began with an untitled preamble, which among other things indicated that the Constitution consisted of a Declaration of Rights and Form of Government. The following headings and excerpts of provisions from the 1776 Pennsylvania Constitution are presented here because they are of essential importance in examining various misleading and erroneous claims in the historians' McDonald brief. Note that the underlined portions of Declaration of Rights sections I, VIII, and XIII, below, are the specific clauses quoted by the historians in their brief.

"A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH, OR STATE OF PENNSYLVANIA
I. That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.
. . . .
VIII. That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service, when necessary, or an equivalent thereto: But no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives: Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent, nor are the people bound by any laws, but such as they have in like manner assented to, for their common good.
. . . .
X. That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure. . . [under general warrants that "are contrary to that right"]
. . . .
XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.
XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.
. . . .
XVI. That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance." [OSA, pp.752,754]
. . . .
"PLAN OR FRAME OF GOVERNMENT FOR THE COMMONWEALTH
OR STATE OF PENNSYLVANIA
. . . .
Sect. 5. The freemen of this commonwealth and their sons shall be trained and armed for its defence under such regulations, restrictions, and exceptions as the general assembly shall by law direct, preserving always to the people the right of choosing their colonels and all commissioned officers under that rank, in such manner and as often as by the said laws shall be directed.
Sect. 6. [Every freeman of twenty-one years of age resident in the state for one year prior to election for representatives who pays taxes, and their sons of that age, even if they do not pay taxes, shall be intitled to vote. {condensed}]
. . . .
Sect. 46. The declaration of rights is hereby declared to be a part of the constitution of this commonwealth, and ought never to be violated on any pretence whatever." [Thorpe, V, pp. 3084, 3091]

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

2010-02-28T00:51:00.008-05:00

Contradiction and Error in the Pennsylvania History McDonald Amicus from Professional Historians

In part 4 of the Franklin Bridge series, a second, shorter statement of George Mason that appeared in the middle of the quoted portion of the historians' brief was set aside for later examination here because it was diversionary in nature. The quoted portion is taken from the next to last sentence of Mason's June 14 Virginia Ratifying Convention argument in support of an amendment that would assure the states power over the militia.

"The solution Mason saw was that “divine Providence has given every individual – the means of self-defense” by joining a militia to combat a standing army." [p.25]

Here is Mason's entire statement showing that the quoted portion of Mason's statement was actually the commonly understood analogue removed from an analogy he was making:

"If the [militia] clause [of the Constitution] stands as it is now, it will take from the state legislatures what divine Providence has given to every individual -- the means of self-defence." [The Origin of the Second Amendment, p.402]

The historians present the Mason statement as if it was a "solution" for the problem he discussed in the Virginia Convention militia powers debate. In reality, as seen in part 4, Mason specified the solution as a militia powers amendment, not the Second Amendment predecessor, and the historians completely ignored this fact. They used Mason's analogue as a diversion away from the actual militia powers amendment solution.

Mason understood that, under the new Constitution, the states could be deprived of their means of defense, which was power over the militia, due to the federal government's paramount powers on that subject. To make his argument more clear, he presented a commonly understood point, that every individual possessed the means of self-defense, a reference to the fact that every individual possessed arms for self-defense. Such an analogue would make no sense whatever unless it was widely understood and factually accurate. The historians complete misrepresentation of this Mason quote destroyed Mason's analogy by erroneously making the analogue dependent upon militia membership, something Mason neither stated, implied, nor intended based upon his complete statement.

Turning to internal contradictions, the above Mason quote conflicts with the historians' views. They argue that period discussion was all about the militia and the necessity of the states being guaranteed power over the militia, not about private ownership of arms and related rights. Yet they provide period evidence that contradicts their view. Here are three of their militia-centric statements, all from a single paragraph, which conflict with historical information presented elsewhere in their own brief:

"While the Second Amendment debates focused on the militia, they virtually ignored any right of individuals to defend themselves personally with firearms. . . . The debate was a discussion concerning the militia, nowhere in it is there the slightest hint about a private or individual right to own a weapon. This should not surprise us, for “[i]n all the discussion and debates” over the Second Amendment, “from the Revolution to the eve of the Civil War, there is precious little evidence that advocates of local control of the militia showed an equal or even a secondary concern for gun ownership as a personal right."" [pp.27-28]

Mason's quote, which appeared two pages earlier in the brief and was examined above, conflicts with the historians' opening statement. Mason described the fact that "every individual --[has] the means of self-defence", a clear reference to "every individual" having arms for self-defense.

The historians' statements are contradicted by their quote of Tench Coxe, which appears on the previous page of their brief:

"the people are confirmed in the next article in their right to keep and bear their private arms.” [p.26]

Obviously, if the people are confirmed "in their right to keep and bear their private arms" [OSA, p.671] as Coxe described, then the historians' denial that the debate was about "gun ownership as a personal right" is in direct conflict with this period fact.

Coxe's statement related to the purpose of James Madison's Second Amendment predecessor, which stated:

"Fourthly, that in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit:
. . . .
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country . . ." [OSA, pp.654-655]

Understanding the context of Madison's Second Amendment predecessor is essential for properly understanding Coxe's explanation. It was the fourth of ten articles to be inserted at Madison's specified location in the Constitution. The other nine articles were protections later included in the First, Third, Fourth, Fifth, Sixth, Eight, and Ninth Amendments, all of which relate to private rights. The order of the protections later found in the First, Second, and Third Amendments is exactly the same as originally proposed by Madison. The location specified by Madison for insertion is the only one in the Constitution where individual rights are protected against the federal government. [OSA, p.654-656] Thus, it is clear that Madison treated the Second Amendment predecessor as a typical bill of rights protection for individual rights. This makes perfect sense because he developed these protections from the Virginia proposal for a Bill of Rights, which quoted language taken directly from existing state bills of rights. Coxe's statement describing a right of the people to keep and bear their own "private arms" directly conflicts with the historians' view.

There is also a conflict between the historians' three statements on pp.27-28 of the brief and the argument they present on its following page:

"This suggests that Madison and Congress knew about the "Reasons of Dissent [of the Pennsylvania Minority]," read them, and treated them like a menu, selecting some options and rejecting others, including the individual-oriented gun-right provisions. . . . But Congress decided not to recognize the individual-oriented gun rights in the Dissent, including the right not to be disarmed except in exceptional circumstances and the right to hunt." [pp.28, 29]

Here, the historians state that the arms provision of the Pennsylvania Minority (quoted directly below) protected "individual-oriented gun-right provisions", exactly what they deny was a topic of period Second Amendment related discussion on the previous page of their brief, specifically, the "individual right to own a weapon" and "gun ownership as a personal right." Exactly how individual gun ownership as a personal right gets proposed as a constitutional amendment without any discussion whatsoever is problematic on its face.

This is the Pennsylvania Minority's Second Amendment related proposal:

"That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals". [OSA, p.160]

Not only are the historians' arguments repeatedly contradicted by period sources discussed or quoted in their own brief, but the historical facts prove they are entirely incorrect in their view that period Second Amendment debate was always about the militia and not about gun ownership as a personal right. The exact opposite is the fact. Protection for the people's right to keep arms was offered by Antifederalists in every state ratifying convention where bill of rights provisions were proposed. These included Pennsylvania [OSA, p.151], Massachusetts [OSA, p.260], New Hampshire [OSA, p.446], Virginia [OSA, p.459], New York [OSA, p.481], North Carolina [OSA, p.505], and Rhode Island [OSA, p.735]. Each of these conventions voted on a bill of rights related provision either preventing disarming of the people or protecting the people's right to keep arms, which are equivalent provisions in different words. In each case, these provisions were associated with clearly bill of rights related provisions. [see citations above]

And directly contrary to the mixed up views of these professional historians, in only three of the ratifying conventions did the Antifederalists propose a militia powers amendment, Pennsylvania [OSA, p.151], Virginia [OSA, p.460], and North Carolina [OSA, p.507]. In other words, the historians have everything backwards. The right to keep arms was included in all seven of the ratifying conventions where bill of rights amendments were discussed and proposed, whereas militia powers amendments were proposed in only three conventions. Seven is a lot more than three. The private right to keep arms was actually proposed as an amendment to the Constitution more than twice as often as an alteration of the militia powers. This indicates that the historians continually overlook something that is essential for understanding the Second Amendment. What they have been constantly ignoring is the history of the Second Amendment as a bill of rights provision. It is the extensive and divisive ratification era bill of rights debate they have ignored that directly resulted in development and proposal of Second Amendment related protection by Antifederalists. Professional historians have been prime movers in ripping the Second Amendment out of its actual Bill of Rights history and pasting it into a militia powers debate history that is unrelated.

Rather than the Second Amendment debate being all about the militia, with nary a mention of individual rights relating to private arms ownership, as insisted upon by the historians, the relevant debate was all about adding a Bill of Rights to the Constitution protecting the individual rights already found in the existing state bills of rights, every one of which included a Second Amendment related provision. Every convention voting on bill of rights amendments dealt with the right to keep arms, while less than half of those conventions voted on a militia powers amendment. These facts emphasize the point that the professional historian amici supporting gun control in the McDonald Supreme Court case are not familiar with the period historical sources most relevant for understanding the Second Amendment. This is the primary reason why their opinions are so often in direct conflict with the Founders' views and period facts. The best that can be said for the historians' Second Amendment claims is that they are completely unreliable.

Error as Foundation for the Mother of All Ideological Divides

2010-02-19T14:07:00.016-05:00

Dissenting Heller Justices Bought the Arlington Memorial Bridge from Professional Historians
[Updated February 26, 2010]

This post links Professor Paul Finkelman's use of a Virginia Ratifying Convention disarming argument by George Mason, examined in the previous post, with his use of a different Mason disarming argument from the same source presented in the professional historians' Heller brief supporting Washington DC's gun control laws. The fact is that Professor Finkelman and his associates, who filed one of eight historically oriented briefs in Heller, fundamentally influenced Justice Stevens' dissent in that case. This post emphasizes the erroneous nature of the conflationary Mason Virginia Convention arguments in Professor Finkelman's McDonald and earlier Heller Supreme Court briefs, and presents additional historical information documenting the error. It also demonstrates that a Virginia militia powers amendment/Second Amendment conflation error has always been a major historical foundation of gun control supporters' arguments.

Professor Finkelman, one of four McDonald Pennsylvania history amici, was also one of the fifteen academics involved with the professional historians' amicus brief in the earlier Heller case. That earlier brief used a George Mason disarming argument from the Virginia Convention as the link between its militia powers dispute and the Second Amendment. However, the particular Mason argument presented there appeared fourteen sentences earlier in Mason's speech than the one presented in the McDonald Pennsylvania brief. [The Origin of the Second Amendment, p.401] Every erroneous aspect of the second Mason "'disarming" argument demonstrated in the previous post also applies to Professor Finkelman's usage of Mason's first "disarming" argument in the earlier historians' Heller brief as well.

Eight briefs presenting historical arguments supporting Washington DC's gun control laws were filed in the Heller case, and every one of them contained a 1788 Virginia Convention militia powers argument link to the Second Amendment [see list at the end of this paragraph]. Each of them was in error for the same reason, conflating non-related militia powers and bill of rights arguments and amendments. In those Heller historical briefs, Mason's first "disarming" argument is mentioned or quoted as the specific link to the Second Amendment, with one relying on Mason's related "various ways of destroying the militia" statement instead. By repeating this erroneous argument in their own amicus, the fifteen professional historians, including Professor Finkelman, gave their imprimatur to the erroneous Virginia Convention related claims in the other seven Heller historical briefs. This mass of historical misinformation backed up by a substantial group of professional historians naturally had an adverse affect on Heller because this is the completely erroneous view that was incorporated as the foundation of Justice Stevens' militia-centric dissent. He quoted the first Mason disarming statement, making it the pivotal link between his entirely militia powers related history and the Second Amendment. [Justice Stevens' Heller dissent, p.20] Justice Stevens' historically oriented dissent is entirely erroneous as a result. [List of briefs presenting erroneous argument of conflation: Petitioner's Brief p.24, Major American Cities p.17, Brady Center p.21, Am. Jewish Committee p.17, Professors of History, p.20, Chicago p.11, NY HI etal Brief pp.5-6, Petitioner's Reply Brief p.6. Briefs available here.]

An article by constitutional scholar David Hardy appeared last month in the online Cardozo Law Review, DeNovo, entitled, Ducking the Bullet: District of Columbia v. Heller and the Stevens Dissent, which specifically addresses errors of Justice Stevens. In addition to the overall excellent presentation, Mr. Hardy does a superlative job presenting the historical details of Antifederalist actions in the Virginia Ratifying Convention proving that the Second Amendment could not be the result of militia powers debate there. He includes even more details of Virginia history than presented in the previous Franklin Bridge post. Relying on a time-line of Antifederalist actions within the convention and the existence of an early partial list of non-bill of rights amendments lacking a militia powers provision, he proves that the militia powers arguments and the amendment resulting from them appeared later and were unrelated to the earlier Second Amendment provision, which was part of a completed bill of rights formed early in the convention. [pp.76-77] David Hardy's article is a must read for those interested in Second Amendment history.

Another essential piece of historical evidence exists that backs up the facts in David Hardy's article, as well as the points in part 4 of the Franklin Bridge series, about the erroneous nature of arguments linking militia powers dispute to the Second Amendment in the 1788 Virginia Ratifying Convention. George Mason, chairman of the Antifederalist amendments committee, sent a letter to New York Antifederalists early in the convention on June 9th. Included with the letter was the complete proposed Bill of Rights, which included the two-clause Second Amendment predecessor, and the partial list of "other" non-bill of rights amendments, which did not include the later developed militia powers proposal identified in Mr. Hardy's article. Mason clearly indicated in his letter that proposed amendments of the Constitution's militia powers had yet to be addressed by the amendments committee. [The Founders' View of the Right to Bear Arms, pp.133-134] Thus, the author of all proposed amendments from Virginia, both the bill of rights as well as the "other" amendments, did not view the Second Amendment predecessor as an amendment of the Article 1, Section 8 militia powers. This is directly in conflict with the beliefs of gun control supporters, including the professional historians who have been re-writing American history to back up their mistaken views.

There are at least three separate historical facts from the Virginia Ratifying Convention conclusively demonstrating the original proposal of the two-clause Second Amendment progenitor from Virginia was not related to period state militia powers arguments, and that gun control supporters' claims to the contrary are completely erroneous. First, the Virginia Convention militia powers link to the Second Amendment erroneously conflates it with an entirely different amendment specifically relating to militia powers, as documented in part 4 of the Franklin Bridge series. Second, the time-line evidence from the convention developed by David Hardy indicates development of the erroneously linked subjects occurred at different times and were for substantially different purposes. Finally, Mason's letter accompanying the bill of rights and partial amendments list on June 9, 1788 conclusively confirms the time-line evidence and indicates that no militia powers amendment had yet been discussed by the amendments committee at the time the bill of rights containing the Second Amendment predecessor had already been developed, completed, and sent to New York.

A Virginia militia powers amendment/Second Amendment conflation error is the major historical foundation of gun control supporters' arguments since the mid-1960's. The following list of seven law review and one Journal of American History articles going back in time to 1966 all use an erroneous Virginia Ratifying Convention argument conflating the militia powers dispute and the Second Amendment. The earliest two do not directly use either of Mason's disarming statements. However, starting with the Weatherup 1975 article, a Mason disarming statement or quote became the norm for making this erroneous conflation. The latest two articles, from the 2000 Chicago-Kent Law Review Symposium on the Second Amendment, were intended not only to to influence the U.S. Fifth Circuit Court of Appeals' U.S. vs Emerson decision, but those of any subsequent federal court cases as well. Fortunately, five Supreme Court Justices were not in a bridge buying frame of mind in Heller, nor were two Fifth Circuit judges in Emerson, preferring the actual historical facts found in period sources to stories about history from professional hiStory tellers.

Law Review Articles Containing a 1788 Virginia Convention
Militia Powers/Second Amendment Conflation Error

2000, Rakove, The Second Amendment: The Highest Stage of Originalism, 76 Chicago-Kent Law Review Symposium on the Second Amendment, 103

2000, Uviller & Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 Chicago-Kent Law Review Symposium on the Second Amendment, 403

1998, Bogus, The Hidden History of the Second Amendment, 31 University of California at Davis Law Review, 309

1984, Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71#1 Journal of American History

1976, Santee, The Right to Keep and Bear Arms, 26#2, Drake Law Review, 26

1975, Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 Hastings Constitutional Law Quarterly, 961

1969, Levine & Saxe, The Second Amendment: The Right to Bear Arms, 7 Houston Law Review, 1

1966, Feller & Gotting, The Second Amendment: A Second Look, 61 Northwestern University Law Review, 46

The above information indicates that supporters of gun control have based their interpretation of Second Amendment history on a fundamental error for nearly half a century, and they have consistently ignored period evidence contradicting their beliefs for that entire period of time. Since 1999, a number of professional historians have been recruited to back up legal professionals supporting gun control in the ongoing Second Amendment dispute. Some published their views in the 2000 Chicago-Kent Law Review. More recently, a number of the recruited historians filed briefs presenting their views about Second Amendment history to the Supreme Court in the Heller case, and most recently in McDonald vs Chicago. These professional historians' briefs supporting gun control laws have consistently been in error regarding period facts, statements, and views of the Founders that are most relevant for understanding the Second Amendment, points examined and documented in three different series of posts at this Blog. Their errors have been so numerous and egregious as to make it perfectly clear to any unbiased individual that nothing these historians present about the Second Amendment can be relied upon as accurate.

The period evidence directly contradicts the belief that the terms "well regulated militia" and "state" in the Second Amendment's first clause are references indicating any intent to protect state militia power. Such arguments have often been advanced in attempts to prove that the Second Amendment is not related to individual rights. The particular historical materials examined in David Hardy's Cardozo Law Review article and the previous post prove that both the Heller dissent and the historians' arguments using the militia powers debate in Virginia as a link to the Second Amendment are erroneous. Because the Second Amendment predecessor originated in Virginia, these facts also prove that every argument ever made by supporters of gun control claiming that the Second Amendment relates to state power over the militia is erroneous. That information added to the fact that the original bill of rights language containing "well regulated militia" and "free state" came directly from Virginia's bill of rights provision limiting state legislative power brings all ambiguity in this matter to an end, at least for those willing to rely on documented historical facts.

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

2010-02-11T14:40:00.013-05:00

Conflation , Contradiction and Error in the Pennsylvania History McDonald Amicus from Professional Historians

[Updated February 20 & 26, 2010]
To the historians, the extensive ratification era arguments about militia powers and the need to amend them are viewed as proof that the Second Amendment resulted from those very arguments because the term "militia" appears in it. The following statement from the historians' brief indicates this general view:

"The Second Amendment came out of a debate about the purpose and control of militias." [p.23]

The above statement is false, as demonstrated in the following analysis, because the Second Amendment actually came out of the ratification era demands for a federal bill of rights consisting of existing state bill of rights protections. The following series of statements from the historians contain embedded quotes of two major Founders, George Mason and Patrick Henry, spoken in the 1788 Virginia Ratifying Convention. The historians thoroughly conflate Antifederalist desire for a militia powers amendment with the separate and distinct desire for Second Amendment related bill of rights protection in their use of these Founders' quotes.

""Mason warned of central governments’ penchant for disarming the people:

"An instance within the memory of some of this house will show us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British government was advised by an artful man [Sir George Keith], who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia."

The solution Mason saw was that “divine Providence has given every individual – the means of self-defense” by joining a militia to combat a standing army. Id. 380–81. Patrick Henry argued that “You have a bill of rights [in Virginia] to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power!” Id. 146. He sought to replicate at the federal level the state constitutional provisions allowing the people to protect themselves against government. The right of revolution was still foremost in his mind." [pp.25-26]

[The Id. 146 reference above from the brief is in error. It should read 446. DY]

The historical problem in the above amalgam of quotes is conflation of Mason militia powers debate quotes that are not directly Second Amendment related to a Henry bill of rights quote from two days later during bill of rights debate that is directly related to the Second Amendment. Mason's quotes are from June 14 debate on the Article 1, Section 8 militia powers. Mason stated the solution for his concerns by specifying the amendment he wanted. The "solution" that the historians read into Mason's second remark is diversionary and misleading, thus, it is discussed in a later post. Found within the same paragraph along with Mason's first quote is the solution to the problem he is describing, which the historians completely ignore:

"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, as I am conscious the government ought to have the power." [The Origin of the Second Amendment, p.402]

Mason, chairman of the Antifederalist amendments committee, was the author of the Virginia Ratifying Convention's proposed Bill of Rights as well as a list of 20 "other" non-bill of rights amendment proposals. [OSA, pp.457-462] Compare Mason's stated amendment solution above to Virginia's proposed "other" amendment #11, which is also ignored by the historians:

"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 ro provide for the same." [OSA, p.460]

This is the proposed amendment that directly results from the militia powers debate Mason's quote is extracted from. His stated amendment solution in the same paragraph as his quote is presented in virtually the same words as proposed amendment #11, which he wrote. Also, Mason clearly indicated this was the only amendment Antifederalists sought regarding the Article 1, Section 8 militia powers. Thus, the Second Amendment was not the solution Mason was seeking, nor could it possibly have been the result of that or any other day's militia powers arguments from the Virginia Ratifying Convention. The historians view that the Second Amendment "came out of a debate about the purpose and control of militias" is false because the period sources they ignore conclusively prove that the Second Amendment was not the solution sought by Mason, and that the actual solution, proposed amendment #11, was the only one sought by the Virginia Antifederalists relating to the Constitution's militia powers. The period evidence conclusively indicates that the Mason quote provided by the historians is not directly related to the Second Amendment.

Patrick Henry's quote from two days later, on the other hand, is directly related to the future Second Amendment. It not only directly dealt with the bill of rights issue, but Second Amendment predecessor language from the state bill of rights was also specifically introduced in the Virginia Convention in relation to it. Shortly before making the statement quoted by the historians, Henry initiated discussion about the need for a federal bill of rights on June 16 by having the 8th through 13th articles of Virginia's declaration of rights read. [OSA, p.434] These particular protections against state violation of the people's rights were later incorporated as the first eight amendments of the U.S. Bill of Rights (excepting the 3rd). [OSA, pp.743-746] This is the 13th article from Virginia's 1776 bill of rights:

"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; 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." [OSA, p.434]

Virginia' 1776 provision is the original state bill of rights progenitor of the Second Amendment's first clause. It was adopted verbatim, with added bill of rights protection from other states, by the 1788 Virginia Ratifying Convention as part of its proposed bill of rights. Here is Virginia's proposed Bill of Rights Article 17:

"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; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power." [OSA, p.459]

This 1788 Virginia proposal is the original two-clause ratification era progenitor of the Second Amendment. James Madison not only voted for the above Virginia Ratifying Convention proposal, he promised to actually support the Second Amendment related parts of it along with all of the other individual rights protections in the proposed bill of rights from Virginia, and he directly relied upon it in drawing up his version of what became the Second Amendment. Madison's 1789 version of the above as presented to Congress stated:

"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country". [OSA, pp.654-655]

For comparison, this is the Second Amendment as passed by Congress and ratified by the states:

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

To the historians, the Second Amendment was all about the militia, not about individual rights to possess arms, and it resulted from ratification era militia powers arguments. Period sources prove their use of militia powers arguments as relating to the Second Amendment are erroneous because they conflate largely unrelated arguments as well as an entirely unrelated amendment with the Second Amendment. That the Second Amendment is a bill of rights provision taken directly from state bills of rights provisions is what the period sources clearly show. These facts cannot be determined from the confusing information presented by the historians in their brief. They can only be determined by examining essential information the historians have ignored, such as Mason's militia powers amendment solution to the problem he was describing, and the resulting militia powers amendment he produced to solve that problem.

The historians constantly pursue a militia powers nexus throughout their brief while always downplaying the much more relevant bill of rights related history of the Second Amendment. Their attempted link of the two different subjects in the above amalgam of Mason and Henry quotes results in error due to conflation of unrelated militia powers and bill of rights arguments and solutions.

Because of such errors, the professional historians' amicus brief supporting Chicago's gun control laws in the McDonald case cannot be relied upon for factual information about the Second Amendment's history or intent.

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

2010-02-08T18:37:00.005-05:00

Contradictions and Errors in the Pennsylvania History McDonald Amicus from Professional Historians

Continuing with ratification era related arguments, the historians make this assertion:

"Federalists also argued that the ability to amend the Constitution negated any necessity for armed revolt and made obsolete any right of revolution." [pp.23-24]

There is a very good reason why not a single statement by a Federalist is presented to back up this bold assertion from the historians. It is false. Federalists were just as aware as the Antifederalists that tyranny was possible, although they thought it a much more remote possibility under the proposed Constitution than their Antifederalist opponents, who considered it very likely. This is why it was the Antifederalists who supported, developed, and politically forced Federalists to accept the Bill of Rights. Both parties had much to say about the people possessing their own arms in the future. The Antifederalists feared that the people would be disarmed. Their opposition often stated a Federalist Mantra, which in its simplest form indicated that tyranny was impossible under the new Consitution because the people were armed, exactly the opposite sentiment claimed by the historians. [See The Founders View of the Right to Bear Arms, pp.93-94, 105-110, for information on the Federalist Mantra.] Here are just four of many examples of the arms related Federalist Mantra:

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States." [Noah Webster, An Examination into the Leading Principles of the Federal Constitution, Oct. 10, 1787, OSA, p.40]

"It was a chimerical idea to suppose that a country like this could ever be enslaved. How is an army for that purpose to be obtained from the freemen of the United States? They certainly, said he, will know to what object it is to be applied. Is it possible, he asked, that an army could be raised for the purpose of enslaving themselves and their brethren? or, if raised, whether they could subdue a nation of freemen, who know how to prize liberty, and who have arms in their hands?" [Theodore Sedgwick, Debate in the Massachusetts Ratifying Convention, Jan. 24, 1788, OSA. pp.230-231]

"[T]o the citizens of America . . . .
The power of the sword, say the minority of Pennsylvania is in the hands of Congress. My friends and countrymen, is is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. . . . Their swords, and every other terrible implement of the soldier, are the birthright of an American. What clause in the state or foederal constitution hath given away that important right. . . .the unlimited power of the sword is not in the hands if either the foederal or state governments, but, where I trust in God it will ever remain, in the hands of the people." [Tench Coxe, Newspaper Article, Feb. 20, 1788, OSA, pp.275-276, emphasis in original]

"The people are not to be disarmed of their weapons. They are left in full possession of them." [Zachariah Johnson, Debate in the Virginia Ratifying Convention, June 25, 1788, OSA, p.452]

Johnson's above comments appear in the middle of a speech in which he explains why it is impossible for an establishment of religion to be made by the government under the new Constitution. The fact is that one of the main Federalist arguments in favor of the U.S. Constitution, which had no bill of rights, was that the people could prevent tyranny because they not only possessed and knew how to use arms but they also understood their rights.

Antifederalists did not want to engage in future arguments about what those rights of the people were, or have to fight their government to retain them. Instead, they insisted that the protections limiting the state governments found in the existing American state bills of rights be added to the Constitution as a Federal Bill of Rights. Thus, their rights would be part of the law of the land, and every government official would have to take an oath to uphold them. Violations by the government of the rights of the people would be plain to all and would authorize the people to defend their rights by defending the supreme law of the land against the officials who were actually violating it.

The historians assertion that Federalists argued the right of revolution against tyranny was obsolete is false. This claim in their brief suggests that these historians are completely unfamiliar with ratification era sources, and that their opinions about how the Founders viewed the Second Amendment and an armed populace are completely unreliable.

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

2010-02-08T04:28:00.004-05:00

Contradictions and Errors in the Pennsylvania History McDonald Amicus from Professional Historians

Dealing directly with the Pennsylvania Minority's bill of rights proposals, the historians make this observation:

"This suggests that Madison and Congress knew about the "Reasons of Dissent," read them, and treated them like a menu, selecting some options and rejecting others, including the individual-oriented gun-right provisions. . . .
The proposals of the Pennsylvania dissenters that were incorporated, sometimes almost word-for-word, into the [U.S.] Bill of Rights include the rights in the Free Exercise, Free Press, and Free Speech Clauses of the First Amendment, and those in the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments. . . . But Congress decided not to recognize the individual-oriented gun rights in the Dissent, including the right not to be disarmed except in exceptional circumstances and the right to hunt." [pp.28, 29]

However, contradicting their claim that Congress rejected the Minority's desired protection relating to the right to bear arms, the Second Amendment clearly contains Pennsylvania style language in its second clause, which James Madison altered from a Pennsylvania style declaration into a restrictive form:

"The right of the people to keep and bear arms shall not be infringed". [OSA, p.654, underline added]

Additionally, the Pennsylvania Minority's provision protected the people's right to "keep" arms by preventing passage of laws for "disarming the people or any of them". Exactly the same purpose was achieved in the Second Amendment by simply adding "keep" to the existing people have a right to bear arms language. It should be clear to any unbiased reader that the historians are in complete denial of period sources they are fully aware of.

For the sake of historical clarity, the Pennsylvania style language found in the U.S. Bill of Rights resulted from the fact that George Mason wrote the model for the U.S. Bill of Rights in the Virginia Ratifying Convention using the Virginia Declaration of Rights as the foundation with added provisions from other states, including Pennsylvania. While there is no doubt that the members of Congress were familiar with the proposals of the Pennsylvania Minority, they did not need to use the Minority's proposals directly as a menu, because their provisions were incorporated in Mason's proposal. All of the first eight amendments are directly based upon Mason's model Bill of Rights, [OSA, pp.388-390] which included the "bear arms" style language of the Pennsylvania Minority that originated in the 1776 Pennsylvania Declaration of Rights. [OSA, p.754]

There is another historical fact also contradicting the historians. A total of fifteen amendments were proposed by the Pennsylvania Minority. [OSA, pp.150-152] Only the first seven were based on quotes of Pennsylvania Declaration of Rights provisions, the seventh one being "the people have a right to bear arms" protection. The Speaker of the House of Representatives, which passed the Bill of Rights amendments, was Frederick Augustus Muhlenberg from Pennsylvania. He stated in an August 18, 1789 letter that the congressional proposal of amendments, mostly bill of rights provisions, about to be passed from the House to the Senate "takes in the principal Amendments which our Minority had so much at Heart". [FVRBA, p.195, OSA. p.799] The principal amendments were bill of rights proposals. That was the reason why the first amendments to the U.S. Constitution were Bill of Rights provisions, the first eight of which were all developed directly from state bills of rights protections. Pennsylvania was the state where "the people have a right to bear arms" language first appeared. That language is the foundation for the Second Amendment's second, restrictive clause.

That the historians are attempting to deny, separate, and explain away Pennsylvania "people have a right to bear arms" language as entirely unrelated to the Second Amendment is evident. Their attempts to do so lead to many more errors of fact than those documented above, as will be noted in future posts of this series.

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

2010-02-08T04:14:00.005-05:00

Contradictions and Errors in the Pennsylvania History McDonald Amicus from Professional Historians

[This Benjamin Franklin Bridge series of posts will address numerous historical errors in the Pennsylvania and Early American history amicus brief filed with the U.S. Supreme Court by professional historians supporting the Windy City in the McDonald vs Chicago Second Amendment incorporation case. One of the four professional historians involved, Professor Finkelman, was also involved in two other McDonald historical briefs, one analyzed in the London Bridge series of posts, as well as being involved in the historians' 2008 brief supporting Washington DC in the Heller case. For those unfamiliar with this blog, the London Bridge series of posts consists of 6 parts starting January 16, 2010, and the Heller related series consists of 24 parts starting January 25, 2009, entitled Root Causes of Never-Ending Second Amendment Dispute. Both series address and document astonishing numbers of historical errors appearing in the Second Amendment related briefs from professional historians. In this Pennsylvania related brief, Professor Finkelman has teamed up with Nathan Kozuskanich, author of a paper on Pennsylvania history and the meaning of "bear arms" that was cited in the historians' Heller brief.]

The historians' argument begins with a look at the ideas of English Whig writers, particularly John Locke, and of several Americans regarding self-defense and defense of the polity, which the historians prefer to call "collective" self-defense. Their brief then deals with Pennsylvania colonial history as influenced by the Quakers who founded and controlled the colony for a large part of its history. They argue that Quakers had a significant impact on development of some provisions in the 1776 state constitution. However, they grossly exaggerate the extent of that influence, misinterpret the language and intent of the arms related provisions within it, and completely ignore the provisions of the state constitution authorizing and limiting the new government being established under it. Regarding the ratification period, when the U.S. Constitution was debated and a federal bill of rights was demanded, they make arguments based upon the proposals of the Pennsylvania Minority, including their arms related provision, which the historians deny has any relationship to the Second Amendment. The purpose of the brief is largely to explain away the "people have a right to bear arms for the defence of themselves and the state" language of the Pennsylvania Declaration of Rights as not protecting an individual right (except as allowed by the government). This and subsequently developed Pennsylvania language about "bear arms" is consistently separated from any connection to the Second Amendment in spite of extensive contrary period source evidence. The analysis of errors in this series will generally begin with the later ratification period and trace arguments back in time to the earlier revolutionary and colonial periods.

To properly understand the historians' view, their general statement about the Second Amendment's meaning follows:

"In the Second Amendment, the Founders codified the right of the people to bear arms collectively, with the understanding that some individuals could possess those arms, but the militia, and thus the individuals, would be in the service of the government, which would ensure that the militia was “well regulated.” [p.35]

Restating for clarity, some individuals who are members of a government regulated militia in government service would have the "right" to possess and bear arms if allowed or ordered to do so by the government. The extent of the conflict between the historians understanding of this "right" protected by the Bill of Rights and that of the Founders who developed and adopted it will become evident as the views of the former are documented to be in direct conflict with the statements and views of the latter.

Early in their McDonald amicus brief, the historians make the following assertion in relation to their request that the Supreme Court "reconsider its historical interpretation" in Heller:

"The Founders used “bear arms” to have specific meaning limited to the context of military service." [p.12, footnote 3]

This statement is false. The 1787 Second Amendment related provision from the Pennsylvania Minority's bill of rights proposal offered in that state's ratifying convention and later printed in their "Reasons of Dissent" directly contradicts it.

"That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals". [The Origin of the Second Amendment, p.151, underline added]

Clearly, "bear arms" is specifically used to refer to other than "military service" purposes in this proposal, a fact directly contradicting the historians erroneous claim. The Pennsylvania Minority's proposed bill of rights arms proposal not only protected each individual's right to bear arms for specified private purposes, such as defense and killing game, and for organized defense when necessary at the discretion of the individual, it also protected each individual's right to keep arms by preventing laws disarming the people. Note that this Second Amendment related provision was part of the first proposal for a federal bill of rights made in a state ratifying convention, and that Federalists voted down all of the Minority's bill of rights provisions, which are discussed in the next post of this series in more detail.

Historians Try to Sell Brooklyn London Bridge to U.S. Supreme Court - Part 6

2010-02-02T00:45:00.009-05:00

More Error and Omission in the Professional Historians' McDonald Amicus Brief
[Updated February 3, 2010]

The first clause of the Second Amendment states:

“A well regulated militia being necessary to the security of a free State” [The Origin of the Second Amendment, p.744]

Here are the historians' related assertions and quote from a British source:

"The Founders did not limit themselves to borrowing the premise of the Second Amendment from English law. They also borrowed the Second Amendment’s preamble from England’s militia laws, for the Second Amendment’s “well regulated militia” language was inspired by the preamble of the 1757 Militia Act, which stated,

“Whereas a well-ordered and well-disciplined Militia is essentially necessary to the Safety, Peace and Prosperity of this Kingdom[.]"" [pp.35-36]

The only evidence in support of the historians' first assertion above was the claim that the arms provision of the English Bill of Rights and the Second Amendment had only one difference, the latter not being dependent on privileges of wealth or birth. A number of other major differences indicating the historians' assertion was erroneous were demonstrated in Part 1 of this series. In this post, the historians' claim regarding the extent that the Second Amendment is based on the Founders' borrowing from and being inspired by the British militia law is examined. Rather than simply accepting the historians' assertion based on superficial similarities between the two, an examination of their substantial differences is undertaken.

Compare the Second Amendment's first clause to the historians' quote of Britain's 1757 militia act above. The 1757 act has a dependent structure similar to the first clause of the Second Amendment, but shares only one noun with the Second Amendment, militia. Structure is inherently meaningless without words and is far from evidence of borrowing or inspiration. Besides, the Second Amendment's actual American predecessor, a Virginia proposal quoted below, is not a dependent clause but a simple declaration. The dependent nature of the Second Amendment's well regulated militia clause originated when James Madison wrote his version of the Virginia proposal, which was introduced into Congress in 1789, with that body further enhancing the language's dependent nature. [OSA, pp.654-655, 707, 712] Other than the historians' assertion, no period evidence from America is presented linking the Second Amendment to Britain's 1757 militia act. Thus, the dependent nature of Britain's 1757 militia act has nothing whatever to do with later development of the leading dependent clause of the Second Amendment. Considering the misquotes and errors of fact in their brief, as documented in previous posts of this London Bridge series, there are compelling reasons not to accept any undocumented assertions from these professional historians regarding Second Amendment history or intent. Every such claim requires careful examination, and any without supporting period documentation cannot be relied upon.

The historians' claim is that the British act and Second Amendment have similarities of meaning, not just of structure and terminology. But a militia act of Britain could not have the same intent as an American Bill of Rights provision, thus similarity of intent is out of the question, especially since no period evidence is provided to support this view. That leaves similarity of terminology to examine as the only apparent source of any borrowing and inspiration for the Second Amendment's first clause.

Examine the list of terms appearing in both provisions: a, well, militia, necessary, to, the

The only noun in the list of overlapping terms is militia. The important question that immediately arises is whether the British understanding of militia was the same as the American understanding of the term. This is where the historians' claim of borrowing and inspiration utterly fails, for the fact is there was a major difference between the understanding and use of the term militia in Britain and that in America during the founding period.

Britain's militia act established a system relying on a small fraction of the men as the internal source of defense for the kingdom. One reason for the small relative size of the militia was Parliament's imposition of high property qualifications for British militia members, qualifications that were even higher than for members of Parliament, as indicated in the following statement made in the House of Commons an a militia bill, November 15, 1775:

"Lord North, after paying great encomiums on this constitutional mode of defence [militia], replied to the last objection [concerning the smallness of qualifications] by observing, that qualifications were higher in the militia than for the members to sit in that House to make laws." [American Archives, 4th Series, VI, p.86]

Thus, Parliament established a small militia confined to the wealthy and upper classes as defensive support for the Kingdom, which was controlled by Parliament, and Parliament was controlled by the nobility and upper classes, the very upper levels of British society that membership in the militia was confined to. Restating, Britain was a class society controlled by a minority of the upper classes and was protected by a select militia whose members were part of the upper class minority that controlled the country. As for who provided the arms of Britain's select militia members, the militia themselves or the government, Sir George Savile had this to say shortly before the comments of Lord North quoted above:

"hitherto, he said, no man in this country could be armed without the consent of Parliament; the army were armed by Parliament; so were the Militia; but if this bill should pass, the military would be, or at least might be, armed by the King, without the consent of Parliament." [American Archives, 4th Series, VI, p.85]

In Britain, the only apparent way anyone could be armed was either by Parliament, or by the king if Parliament agreed to that. The existing select militia of Britain was obviously armed by Parliament.

Did Americans understand the militia as Britons did - a small fraction of the men, among the most influential and wealthy, who were provided with arms by the government and were the only internal support for government, which was controlled by a small minority of the influential and wealthy? Most certainly not. American militia laws, directly contrary to the British act, were intended to assure that all of the able-bodied free men generally obtained and possessed their own arms and could be relied upon for defense. These American militia laws were passed by largely representative assemblies in the various colonies and early states. Americans understood the militia of Britain to be a select militia that was unlike the general militia relied on in America. This understanding of militia was generally consistent throughout the colonial period and the founding of the United States. [See The Founders' View of the Right to Bear Arms]

Contrary to the historians' claim, the Second Amendment's well regulated militia language was actually borrowed from and inspired by a predecessor provision from the 1788 Virginia Ratifying Convention [OSA, p.459] and included this quote from Virginia's 1776 Declaration of Rights verbatim:

"SEC. 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". [OSA, p.748]

George Mason, who wrote this original, also wrote the model for the U.S. Bill of Rights as a leader of Antifederalists in 1788 Virginia. His Second Amendment related proposal included this well regulated militia language preceded by a direct quote of the Massachusetts Declaration of Rights language that "the people have a right to keep and to bear arms". [OSA, pp.390, 773] This much more relevant information on the Second Amendment's origin in state bill of rights restrictions on state governments is continually ignored in the historians' McDonald amicus while relatively unrelated material and erroneous information is funneled to the Supreme Court in order to becloud the subject, making it extremely and unnecessarily complex. The fact that six of these twenty-one historians also filed a brief in the previous Heller case, where they correctly noted that the Second Amendment originated in the Virginia Ratifying Convention, proves that the intention of this brief is to mislead the U.S. Supreme Court by diverting it from relevant American constitutional sources to largely irrelevant British sources.

During the political dispute over ratification of the Constitution, Americans understood the militia to be a reference to the "whole people, except a few public officers", as stated by Antifederalist George Mason in the 1788 Virginia Ratifying Convention. [OSA, p.430] Federalists also understood the militia to be not only conceptually, but literally based on the people. This is evident from Alexander Hamilton's description of the militia as "the people at large" in The Federalist #29. [OSA, p.198] Antifederalists, those who politically fought to obtain a bill of rights, often described a select militia as no different than a standing army, which was dangerous to liberty. In order to preserve liberty, what they wanted as part of the U.S. Constitution was a bill of rights that would protect the concept already found in every state bill of rights guaranteeing a defensively effective armed population. It is those state bill of rights Second Amendment progenitors that are the origin of the Second Amendment's two clauses, and it is those that the historians are purposefully diverting the Supreme Court well away from in their brief.

There certainly was nothing borrowed from or inspirational about the only other noun in the British 1757 militia act, Kingdom, as compared to the free "state" terminology found in the Second Amendment's first clause. A kingdom under Parliamentary control by the upper classes and claiming unlimited authority was exactly what Americans had just waged a successful war for independence against in order to establish the new free state constitutions and government limiting declarations of rights in America. Thus, contrary to the historians' claim, the British 1757 militia act quoted in the brief provides nothing other than slight superficial similarities to the Second Amendment's first clause. The nouns included in the two provisions, militia in each and Kingdom versus free state, have fundamentally different meanings. These two sources have different purposes, with terms having different meanings, and their structures, while similar, provide no information about inherent meaning. And as noted above, the similarity of dependent structure in the two is an artifact stamped on the Second Amendment by James Madison and Congress. The actual American predecessor of the Second Amendment's first clause Madison relied on was not a dependent clause, but rather a declaration quoted verbatim from America's first state declaration of rights.

Regarding the brief's extensive pre-1689 English history, which constitutes the largest part of the historians' argument, it is essentially irrelevant for understanding anything about much later American constitutional development, such as state bills of rights and the later U.S. Constitution and its Second Amendment containing Bill of Rights. For this reason, no attempt has been made to examine quotes or conclusions for accuracy in that early English material.

[NOTE: The brief under discussion in this London Bridge series of posts is more specifically described as that from English/Early American historians. The series is not complete, as there are other errors to be examined. However, there is a different McDonald historical brief that begs for attention here. It is distinguished from the above brief in that it relates to Pennsylvania and Early American history. The next post to appear will begin a new series dealing with errors in this different McDonald Pennsylvania related historical amicus.]

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

2010-01-25T22:22:00.006-05:00

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

2010-01-25T03:37:00.008-05:00

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

[updated]
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:

"AT A MEETING OF THE FREEHOLDERS AND OTHER INHABITANTS OF THE TOWN OF BOSTON, LEGALLY QUALIFIED AND WARN[E]D IN PUBLIC TOWN MEETING ASSEMBLED (1768)" [Note 82, p.30]

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.

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

2010-01-22T00:14:00.007-05:00

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

[Updated]
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.

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

2010-01-21T03:46:00.008-05:00

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

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.

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

2010-01-17T17:20:00.019-05:00

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]

Historical Points in Chicago's McDonald Brief

2010-01-01T11:23:00.008-05:00

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.

Bill of Rights Day Observance Second Amendment Book Sale Notice and Thank You

2009-12-16T00:57:00.005-05:00

Note that the Bill of Rights Day Observance Second Amendment book sale is an ongoing event, which has been extended until the end of the month. It was originally planned on short notice as a ten day sale. Due to misunderstanding that it was only a one day event, I decided to extend it for another ten days until December 31st.

Further information about the book sale is located in the updated post below for December 9th.

Also, I would like to thank Cam Edwards for mentioning the Bill of Rights Day observance book sale event on his NRA news program, Cam & Company, on Tuesday (12/15/09).

Additionally, I would like to thank any other bloggers who may have mentioned the sale and who have not been specifically noted here.

A Thoughful Bill of Rights Day to Everyone

2009-12-15T20:04:00.004-05:00

Updated December 16, 2009
On this 218th ratification anniversary of the U.S. Bill of Rights, the first ten amendments to our Constitution, here are some thoughts on the novel development in America of limits upon government authority, especially legislative authority.

The English Bill of Rights had already established the concept of limits upon executive authority, but not upon the legislative branch specifically or the government as a whole. It took the American Revolution to bring about declarations of rights with the intent of restrictions on legislative supremacy and the government in general. The people in seven of the original 13 states plus Vermont developed declarations of rights to their state constitutions during the contest with Great Britain. These declarations contained lists of the republican principles and unalienable, fundamental rights that our forefathers understood their new free governments to be founded upon, without which they could not long exist, and to which they were expected to conform.

After defending their newly established state governments united under the defensively oriented Articles of Confederation, a new Constitution was formed in the summer of 1787 by the Federal Convention in Philadelphia. Americans should ever be grateful that the vast majority of those present at the convention rejected George Mason's suggestion for a committee to draw up a bill of rights. Such a bill of rights would have been developed behind closed doors without extensive public discussion of its purpose and meaning. Such an action would have resulted in every aspect of every protection it contained being subject to never-ending dispute as to whether or not it was intended to limit legislative authority and to what extent.

As a result of that refusal, a major political dispute erupted during ratification over the need for a bill of rights as part of the proposed U.S. Constitution. Extensive arguments concerning that subject and the sources and purposes for such a bill of rights appeared in the newspapers, pamphlets, broadsides, and private correspondence of the period. This public dispute divided the country, producing Federalist opponents and Antifederalist proponents for a list of fundamental, inalienable rights to be constitutionally protected as part of the new form of government. The bill of rights dispute was divisive and intense, almost resulting in defeat of the proffered form of government. Early on, Federalists summarily rejected bill of rights proposals in Pennsylvania, Massachusetts, and Maryland, states where the argument was raised and they were in the majority.

In later conventions the Antifederalists prevailed in their arguments for bill of rights protections as proposed amendments to the Constitution. The acceptance of such proposals to guarantee each citizen's right to keep arms, freedom of religion, and prevent all peacetime quartering of soldiers without owner's consent in New Hampshire's convention brought about acceptance by the ninth state and a certainty that the Constitution would be carried into effect. However, this fact was unknown in the Virginia Ratifying Convention. There, in order to assure ratification by at least nine states, the Federalists, led by James Madison, agreed to pass a bill of rights and extensive list of other proposed amendments on to Congress for its consideration in order to achieve ratification. Madison promised to subsequently support the bill of rights proposals he understood as relating to individual rights, including the right of the people to keep and bear arms, and he carried out that promise after being elected to the House of Representatives in 1789.

While the intent and extent of bill of rights provisions, especially the Second Amendment, are often called into question in spite of the open public debate about the bill of rights during ratification, at least there is extensive documentation of the arguments and actions that led to development and adoption of the bill of rights provisions. It is most unfortunate that those who engage in modern discussion concerning such provisions are often completely unfamiliar with the period sources.

If the past is any guide to the future, that Americans will freely enjoy the rights protected by the U.S. Bill of Rights is seriously in doubt unless they remain eternally vigilant. In the case of the Second Amendment, the right to keep and bear arms has not only been violated and ignored, but its purpose actually denied by those interested more in control than liberty. There is little doubt that almost every provision of the Bill of Rights (with the possible exception of the Third Amendment) has either been openly violated or the intent evaded by subterfuge at one time or another.

The refuge for expectation that Americans will enjoy in the future those rights that their ancestors bled and died to pass on to them, protected in a Bill of Rights as part of the supreme law of the land, is a clear understanding of those rights, the resolve to insist that they be observed in every instance, and the ability to defend them in the last resort if all three branches of government basely neglect their primary duty as stated in the oath of office - to uphold the Constitution.

More Thank You updates

2009-12-14T13:33:00.004-05:00

A further Thank You to both Say Uncle and Target Rich Environment for mentioning and linking to the Bill of Rights Day observation sale of my Second Amendment books as posted below.

Due to the title of my Bill of Rights Day announcement, there is some confusion that the observation event is limited to sales on December 15th, the 218th ratification anniversary for the U.S. Bill of Rights. In fact, this is an ongoing event for a limited time. Due to this confusion, the sale is going to be continued through this month until December 31, 2009.

Thank You Updates

2009-12-12T02:03:00.003-05:00

More pro-rights activists have mentioned and linked to On Second Opinion's announcement for the Bill of Rights Day observance sale of my Second Amendment books, which is posted below.

Long time Second Amendment activist and legal scholar, David Hardy, posted a notice concerning it at his Arms and the Law site. David is also the producer of the documentary film, In Search of The Second Amendment.

Mark Vanderberg, pro-rights activist and podcaster, posted a Gunrights tweet on twitter (something new to me) to link to the On Second Opinion Blog announcement. Note that Mark recorded a pre-Heller podcast interview of me concerning The Founders' View of the Right to Bear Arms prior to publication and also posted a synopsis of the book, both of which can be found right here.

Thank you to both David and Mark for helping to get the word out on the Bill of Rights Day observance Second Amendment book sale.

Thank You

2009-12-11T00:39:00.004-05:00

A Thank You to both David Codrea and Thirdpower for mentioning and linking to On Second Opinion's announcement for the Bill of Rights Day observance sale of my Second Amendment books.

Thirdpower posted the notice at Days of Our Trailers.

David Codrea included the notice along with his Gun Rights Examiner announcement for his Feb. 2010 Guns Magazine review of Robert Churchill's book.

Bill of Rights Day Book Sale

2009-12-09T13:30:00.007-05:00

Updated December 14, 2009
GOLDEN OAK BOOKS ANNOUNCEMENT:
BILL OF RIGHTS DAY SALE ON SECOND AMENDMENT SCHOLARSHIP FROM DAVID E. YOUNG

In celebration of the 218th anniversary of the U.S. Bill of Rights on December 15th 2009, Golden Oak Books announces a limited time half price sale on the historical books from Second Amendment scholar David E. Young. Paperback copies of The Origin of the Second Amendment and hardbound copies of The Founders' View of the Right to Bear Arms will be $15.00 each for a 21 day period from December 10th through the 31st, 2009. These sale prices will only be available through Amazon.com at the links for Golden Oak Books provided below. Bill of Rights and Second Amendment historical aficionados will be able to obtain either of Mr. Young's influential books for half of the normal $30.00 list price, or get both for the price of one. Anyone interested in reasonably priced Christmas gifts can give books that will be useful for a lifetime. Check out your local public library because it might be in immediate need of a fact filled book donation to balance out an overabundance of gun control advocate historical tripe.

BOOK INFORMATION

The Origin of the Second Amendment
$15.00 for a limited time
The only complete period document collection, The Origin of the Second Amendment places the Second Amendment into proper context of the demands for the Federal Bill of Rights during ratification of the U.S. Constitution. In addition to bill of rights demands, relevant subjects include discussions about the militia, claims and counter-claims regarding the people being armed in the future, and every reference to the limited powers of the new Federal Government. The Origin of the Second Amendment includes literal transcripts of the amendments proposed in state ratifying conventions, as well as relevant selections from convention debates, newspaper articles, pamphlets, broadsides, and private letters. Complete source citations are provided for each historical document. Three appendices contain copies of the eight existing period state declarations of rights and similar provisions in the other state constitutions, a comparison chart for provisions of the state declarations of rights/ratifying convention bills of rights/U.S. Bill of Rights, and an analysis of support for the U.S. Constitution and the Bill of Rights based on ratifying convention votes.

The Origin of the Second Amendment was cited 38 times in the District of Columbia vs Heller case with 6 citations in Justice Scalia's Supreme Court decision. It was also cited well over 100 times in the U.S. vs Emerson decision from the Fifth Circuit Court of Appeals. These numerous citations make The Origin of the Second Amendment the most cited historical source collection on the subject in the Federal Courts.

Origin contains 800 pages of documents (890 pages total 6"X9"), is indexed, printed on acid free paper, paper bound, and includes an introduction intended for those entirely unfamiliar with ratification era history.

The Founders' View of the Right to Bear Arms
$15.00 for a limited time
Mr. Young's latest book is a definitive history of the Second Amendment providing the most complete and straightforward explanation of its development ever published. The terms and phrases of the amendment are traced from their origin in AMERICA to their inclusion in the U.S. Bill of Rights. Subjects covered in The Founders' View include the widespread ownership and use of arms by Americans in colonial times, the American understanding of militia and well regulated militia, colonial defensive associations, development of Revolutionary Era state bills of rights intended to limit legislative authority, the persons most responsible for such development, Mason Triads, arms related Federalist and Antifederalist Mantras, a detailed analysis of the ratification era bill of rights dispute and proposals, and other closely related matters. Two appendices contain Secretary of State Thomas Jefferson's Official Imprint of the ratified amendments as proposed by Congress and Mr. Young's synopsis of essential facts drawn from numerous American colonial militia laws.

The Founders' View of the Right to Bear Arms was cited extensively in the Heller case in briefs from Gun Owners of America, Academics for the Second Amendment, and Alan Gura's brief for Mr. Heller.

The Founders' View contains 288 pages (6"X9"), is indexed, printed on acid free paper, has a sewn hardcover binding, is fully documented, and relies primarily on The Origin of the Second Amendment for ratification era citation of facts.

BILL OF RIGHTS DAY SALE ORDERING AT AMAZON.COM
The proper sale price will be available only through Golden Oak Books, the publisher of Mr. Young's historical research. The following Amazon.com links connect directly to ordering pages for the respective books:

The Origin of the Second Amendment

The Founders' View of the Right to Bear Arms

For a picture of the author holding citation tagged copies of both books at the NRA's event honoring those involved in the Heller victory, see Sebastian's Thank You post (pictures are clickable to enlarge).

2nd Amendment Center at Ohio State University is Gone

2009-11-25T23:54:00.006-05:00

Updated Nov. 29, 2009

Over at The Volokh Conspiracy, Professor Randy Barnett posts that the Joyce Foundation funded Second Amendment Research Center at Ohio State University has folded. A big Aloha to OSU's 2nd Amendment Center, one of the Joyce Foundation's attempt's to buy historical creds for the proposition that the Second Amendment and gun control are mutually exclusive.

Amusing anecdote: The center's director, Saul Cornell, apparently selected the term "gun" to be used as a keyword in searching for period documents to be placed in the Center's digital archive. This was a poor choice in trying to locate documents related to the Second Amendment since it does not contain that term. One of the most intersting things about the center's digital archive of "relevant" documents was that it consisted mostly of state militia laws. Not one of the Second Amendment's state or ratifying convention bill of rights progenitors nor any period discussions concerning them appeared in it.

My research indicates that in the entire forty to fifty thousand pages of existing ratification era documents relating to the U.S. Constitution the term "gun" appeared only two or perhaps three times. Not one page of those ratification era sources appeared in the OSU's Second Amendment Research Center digital archive, not even the few sources that did contain the term "gun". Due to its extremely rare usage in such period sources, the term was not even listed in the index of The Origin of the Second Amendment.

One of those rare period uses still sticks in the mind, though: "riphael-gun".

Clayton Cramer Needs a Little Help from his Friends

2009-11-02T10:09:00.005-05:00

Clayton Cramer, a professional programmer as well as accomplished Second Amendment historian and author, has been adversely affected by the current economy. He is out of work at the moment and looking for suitable employment.

It was Clayton who first noticed that there were major problems with the historical work of Professor Bellesiles (Emory University), who claimed that there were few firearms in America until the Civil War period. Clayton pursued this until academics became involved forcing Emory to convene a panel of experts that led to the professor's resignation amid charges of academic fraud.

If anyone might be able to help Clayton out in any way, please email him at clayton followed by the at sign followed by claytoncramer.com. (He does not like spambots obtaining his address) His software engineering resume and academic VC are located at claytoncramer.com.

On Second Opinion Update

2009-09-22T08:43:00.001-04:00

For those who follow On Second Opinion, here is a Blog Update:

I have been taking a hiatus from blogging since June 20th in order to catch up with necessary summer work. It was unclear in advance exactly how long this situation would continue.

The plan is to start blogging again in early October. The series about the errors in the professional historians' Heller brief will be concluded then and a new shorter series on the errors in the professional linguists' Heller brief will be started.

Also, I plan to attend the Second Amendment Foundation sponsored 2009 Gun Rights Policy Conference in St. Louis on September 25, 26, and 27. I will be giving a talk about the errors in the historians' Heller brief early Saturday afternoon at the GRPC. For those interested in Second Amendment developmental history and intent, stop by my table and say hello. I hope to see you there.

Thank You.

Root Causes of Never-ending Second Amendment Dispute - Part 24

2009-06-20T00:25:00.007-04:00

Ignored Facts, Unfounded Assertions, and the Historians' Heller Amicus Brief

James Madison's Second Amendment related proposal with attached conscientious objector clause as presented to Congress in June, 1789:

"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." [OSA, pp.654-655]

The historians make these three assertions regarding Madison's proposal:

Assertions #14, 15, and 16
"The final clause was derived from a similar provision recommended by the Maryland Convention. Id. at 181. Its presence confirms that the principal subject was the militia. That clause was also the sole subject of recorded House debate on the entire article." [pp.27-28]

Fact Checking of Assertion #14
Contrary to the historians' assertion, the Maryland Convention recommended no amendments to the Constitution. After ratification by a vote of 63 to 11, the Maryland Convention established a committee to consider possible amendments. This committee approved 13 and rejected 15 minority proposals. The conscientious objector clause was one of those rejected by the committee. The committee could not agree on a final course of action and failed to make any report of amendments. Without a report from the committee, the Convention took no action on any proposals of amendment, even those adopted by the committee. The source cited in the brief specified nothing about the provision being recommended by the Maryland Convention and indicated only that it was a minority proposal. [See The Origin of the Second Amendment, pp.356-361, for details from the Maryland minority about their amendment proposals.]

The Second Amendment clauses in Madison's proposal were clearly taken from the 17th provision in the Virginia Ratifying Convention's proposed Bill of Rights. The 19th provision of that same Bill of Rights was a conscientious objector clause. [FVRBA, p.192] To claim that Madison specifically based his proposal on what was actually a committee rejected proposition never adopted by the Maryland Convention, which recommended no amendments, while ignoring the proposal on the same subject in the Bill of Rights he promised to support and that he actually voted for in order to achieve ratification by Virginia is inane. One has to wonder whether the historians are just not very familiar with ratification era Bill of Rights sources or are simply trying to divert attention again to avoid mentioning that Madison's Second Amendment predecessor and its attached conscientious objector clause both came from Virginia's proposed Bill of Rights, which they have never mentioned the existence of.

Fact Checking of Assertion #15
In the historians' use of the term "militia," government authorization and control are a given, even in bill of rights provisions. Thus, their statement that the conscientious objector clause language Madison added to the Second Amendment clauses "confirms that the principal subject was the militia" completely ignores the purpose for bill of rights provisions - to protect specific rights against government abuse. Also, the term "militia" is not even found in Madison's conscientious objector clause. His objector clause was clearly intended as protection for individuals with religious convictions as an exception from government military power. The Second Amendment clauses were intended as protections for rights that were exceptions to government powers. All of the proposed protections later adopted in the first eight amendments, which were state bill of rights derivatives, protected rights against abuse of the powers given to government. The historians' implication of intended government military control over any of the protections Madison grouped together in this proposal are misplaced because neither the Second Amendment clauses nor the conscientious objector clause were intended to give any level of government power over the militia. Madison treated them only as protections for private rights against government power, and that is exactly how his contemporaries understood them also.

Fact Checking of Assertion #16
The final assertion that the conscientious objector clause was "the sole subject of recorded House debate on the entire article" is a fallacious argument that implies discussion about the objector clause can be taken as applying to the Second Amendment predecessor clauses. The objector clause was later deleted by the Senate after it had engendered numerous and contentious arguments in the House. And contrary to the historians assertion, there were statements made in the House that clearly related to the Second Amendment predecessor. Congressman Scott (PA) indicated that the conscientious objector clause would force the government to rely on a standing army, and that such reliance would eventually lead to violation of "another article" in the Constitution that specifically protected the people's "right of keeping arms." [FVRBA, p.194, OSA, p.703]

Congressman Benson (NY) wanted the conscientious objector clause deleted. He stated:
"It is extremely injudicious to intermix matters of doubt [the objector clause] with fundamentals." [OSA, p.697]
Obviously, he considered the Second Amendment predecessor among the fundamentals.

Conclusion - Assertions #14, 15, and 16 are all Erroneous
Contrary to the historians' assertions:

#14 - Madison could not have derived language for a conscientious objector clause from an amendment recommended by the Maryland Convention because that convention did not recommend any amendments to the Constitution, and a proposed conscientious objector clause was rejected in a committee.

#15 - Madison's conscientious objector clause tacked on to his Second Amendment predecessor did not confirm that the principal subject of either was the militia rather than protection of individual rights. It did not even mention the militia and was clearly a protection for private rights.

#16 - Discussion concerning the conscientious objector clause was not "the sole subject of recorded House debate on the entire article" claimed by the historians in their brief as demonstrated by Congressman Scott's comments on the right of the people to keep arms.

These errors of fact, taken along with a number previously addressed and documented, indicate that none of the signatories to the professional academic historians' Heller amicus brief are overly familiar with period Bill of Rights developmental sources. The cumulative effect of all these erroneous statements is to demonstrate that any statement in the brief regarding Second Amendment intent is unreliable and likely to be completely erroneous because it is founded on numerous errors of fact.

Root Causes of Never-ending Second Amendment Dispute - Part 23

2009-06-19T01:40:00.003-04:00

Diversionary Arguments Abound in the Historians' Heller Amicus Brief

Completely ignoring the restrictive clause of the Second Amendment protecting "the right of the people to keep and bear arms" against infringement, the historians had this to say about Madison's version taken to Congress:

Assertion #13
"Taking the Virginia and New York recommendations as his model, Madison again made the militia the urgent question to confront." [p.25]

Fact Checking of Assertion #13
On the contrary, there was no reason for Madison to deal with militia powers that were already established in the Constitution exactly as the Federalists wanted them. As examined in the previous two posts, what Madison had every reason to do was satisfy the overwhelming Antifederalist demands for adding a bill of rights to the Constitution, the protections of which they took from those already found in the existing state bills of rights. The ratifying convention related proposals for a bill of rights invariably included protection for the right to keep arms. [OSA, pp.151, 260, 446, 459, 481, 505, 735] In the model Bill of Rights developed by George Mason, author of the 1776 Virginia Declaration of Rights, he combined his own original well regulated militia clause with protection for the right to keep and bear arms. [OSA, p.459] Both Mason and Madison understood the predecessor state bill of rights provisions as limits on the state legislatures, and that these same limits were now being placed in a federal bill of rights to protect the same rights against federal abuse of power.

What both the Second Amendment and James Madison's version were intended to do was to assure that "the right of the people to keep and bear arms shall not be infringed." This Madison restrictive language is exactly the same in both provisions. [OSA, pp.654, 716] It is also the language that the historians have consistently bent over backwards to ignore and divert attention away from whenever feasible throughout their brief. Readers are assured that the militia is what "Madison again made" the "urgent question to confront" while the right of the people to keep and bear arms is completely ignored once again in the brief. Where are the period historical sources indicating that Madison considered making the militia powers an urgent question for Congress to confront in relation to his Bill of Rights proposals? There is a reason such sources have not been cited in the brief, because they do not exist. If, as the historians assert, the question Madison was pushing as an amendment to Congress was the militia and it was "urgent", why didn't Madison even mention it in his speech to that body?

The historians presented a page-long straw man argument about what the various points in Madison's notes for his amendments speech to Congress meant. Attempting to divert all attention to the militia clause, they then emphasized that Madison "did not discuss the right to bear arms" in his speech. True, but he also did not discuss freedom of speech, freedom of assembly, the right to petition, the right to counsel, protection against cruel and unusual punishments, and a very great number of other specific rights eventually protected in the U.S. Bill of Rights. Most of the rights he did "discuss," as the historians describe it, were simply mentioned, not discussed. Readers are informed that Madison wanted provisions for freedom of religion, the press, and criminal jury trials as protections against the states, also mentioned in his speech. But where is the "urgent" militia question mentioned in his speech or his notes? Apparently it is not as urgent as the historians purpose of diverting attention away from the right to keep and bear arms clause language.

All of these Madison notes and Congressional speech arguments are used by the historians to divert attention away from much more relevant and important information. In addition to guiding readers away from consideration of the restrictive right to keep and bear arms clause, these arguments divert attention away from the fact Madison stated that the American state bills of rights were intended to limit legislative power. This is a view that directly contradicts the historians' claim upon which this entire brief is founded. Madison stated in his speech to Congress that American bills of rights were intended "to raise barriers to power in all forms and departments of Government." This concept was repeated more than once and was a major point of Madison's Congressional speech introducing his Bill of Rights amendments. The historians are forced to ignore Madison's stated views in order to pursue their confused arguments that are founded on an accumulation of errors about Second Amendment intent. [See parts 1, 2, and 3 of this series for the historians' earliest erroneous statements regarding the intent of the state bills of rights, which contain the Second Amendment's predecessor language.]

Conclusion - Assertion #13 is Erroneous
The historians' assertion that the militia was what Madison considered as an "urgent question to confront" is without historical foundation and is used for entirely diversionary purposes in their brief. Madison never mentioned this "urgent" need for Congress to confront militia powers, and the period evidence clearly indicates, as shown in the previous post, that his concern was private rights in the case of all of the predecessors of the first eight amendments.

Root Causes of Never-ending Second Amendment Dispute - Part 22

2009-06-19T00:58:00.004-04:00

More Error Based Confusion in the Historians Heller Amicus Brief

The historians claim that:

Assertion #12
"In drafting the amendments that evolved into the Bill of Rights, James Madison had no reason to place a private right to firearms on his agenda." [p.25]

Fact Checking of Assertion #12
The historians' claim that Madison was not intent on a Second Amendment predecessor relating to "a private right to firearms" completely ignores relevant period sources on Bill of Rights development. The Antifederalists who prepared Second Amendment predecessor language for a new federal bill of rights understood that it would protect the specified rights against the new government in exactly the same way that the state bill of rights predecessors it was based upon protected the same rights against abuse by the state governments, and Madison also understood the proposals this way (as examined in a number of prior parts of this series).

In effect, the historians are arguing that Madison did not have a clue about what he was doing with his own Second Amendment predecessor, although they do not openly state this. Instead, they do the equivalent by completely ignoring every piece of historical evidence about his efforts to organize, group related proposals, and insert these groups of related amendments into the Constitution. They also ignore the period comments by contemporaries indicating how they understood Madison's proposal. He did not intend to add a list of amendments at the end of the Constitution as ultimately occurred. Instead, Madison intended to insert amendments directly into the document at locations where related material was already located. Which provisions did Madison group the Second Amendment with and where did he plan to put it in the Constitution? Was it grouped and placed along with the Tenth Amendment that the historians have directly related its intent to? No. Was it to be placed among the militia powers that the historians have insisted all along it was related to? No.

Madison grouped the Second Amendment predecessor among a large collection of private rights protections. He wanted all of these inserted into the Constitution directly after clauses 2 and 3 of Article I, Section 9. These are the only provisions in the U.S. Constitution that protect specific private rights against violation by the new federal government. Exactly which rights did he group his Second Amendment related language with? - First, Third, Fourth, Fifth, Sixth, and Eight Amendment predecessors, private rights protecting provisions all. [OSA, pp.654-656]

Based on Madison's own actions, it is clear that the historians' assertion is completely off base. Further evidence of Madison's private rights understanding is found in the fact that contemporaries who commented on this proposal understood it just as he did - as protection for private arms rights.

Fisher Ames, a Massachusetts member of the House wrote this about Madison's proposals:

"The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people. Freedom of the press, too." [OSA, p.668]

Tench Coxe's article explaining the purpose for every one of Madison's proposals treated the Second Amendment predecessor as assuring that "the people are confirmed by the next article in their right to keep and bear their private arms." For what purposes? To prevent tyranny by the government itself or by government raised military forces. [OSA, p.671]

Conclusion - Assertion #12 is Erroneous
The period evidence directly contradicts the historians on this matter. Madison had every reason to pursue a Bill of Rights provision protecting the private right to keep and bear of arms. Madison's actions regarding the Second Amendment are no different than those relating to the other private rights protections in the first eight amendments.

Readers of the professional historians' Heller amicus brief have two choices. They can choose to ignore the period evidence indicating the Second Amendment was intended to protect private rights, just as the historians have done. The alternative is to give the Founders a little credit for understanding exactly what they were doing and saying exactly what they meant by recognizing that the historians have founded their brief on an accumulation of errors that undermine every claim they make about the intent of the Second Amendment and its predecessors.

Root Causes of Never-ending Second Amendment Dispute - Part 21

2009-06-18T00:44:00.010-04:00

Error Based Confusion Reigns In Historians' Heller Amicus Brief

Professor Rakove's brief presented historical material in proper
chronological order with one exception. That exception was
presentations of subsequently adopted right to keep arms proposals
from Virginia and New York that were followed in the brief by
discussion of three earlier proposals protecting the same right. (See
parts 14, 15, and 16 of this series where the Pennsylvania minority,
Massachusetts minority, and New Hampshire Convention proposals
protecting the keeping of arms are examined in proper chronological
order).

This relocation of discussion between the Virginia and Madison's
arms proposals about earlier protections for the right to keep arms
serves two purposes in the brief. Grouping the undeniably private
right protecting earlier proposals together at this point and
distinguishing them from the Virginia/New York proposals, which
combined the right to keep arms with a well regulated militia
reference, helps deemphasize the included right to keep arms
protection while advancing the militia powers only related view of
the historians. A second reason for using the earlier protections as
transition material separating the Virginia proposal from Madison's
version that was based directly upon it is to divert attention away
from the complete inconsistency between Madison's actual language
and the "reserved power of the states" argument that the historians
insist on reading into it.

This is James Madison's Second Amendment predecessor:

“The right of the people to keep and bear arms shall not be infringed;
a well armed and well regulated militia being the best security of a
free country;” [OSA, p.654]

Here is one of the historians' interesting claims about Madison and
his proposal's intent:

Assertion #11
"But as the eventual Tenth Amendment demonstrates, Madison also
intended to rebut Anti-federalist charges of "consolidation" by
affirming the reserved powers of the states and the people, in a
manner akin to the Second Amendment." [p.25]

Fact Checking of Assertion #11
There is more than one factual historical problem buried within this
assertion. First, Madison's Second Amendment predecessor did not
even mention the "states" or "powers". Thus, it is quite clear that
Madison was not using his version of the Second Amendment
with any intention of protecting "reserved powers of the states"
relating to the militia.

Second, James Madison was a Federalist leader and one of the
Framers most responsible for taking powers away from the states
and giving paramount authority over them to a new federal
government in the U.S. Constitution. The historians' bold implication
that somehow Madison had changed his mind and for some strange
reason now intended to assure "reserved powers of the states"
relating to arming the militia is nothing short of preposterous.
What is most interesting is how the historians attribute Madison's
intent to Congressional Second Amendment language not found
anywhere in Madison's actual proposal. He changed Virginia's
"free state" reference to "free country" because his version was
intended to protect against the country's new government while
the language it was taken directly from originally protected against
Virginia's new state government.

The attempt to tie the Tenth Amendment to the Second Amendment
in the brief is without historical foundation because the two
amendments came from such completely different sources. The
Tenth Amendment predecessor was included in Virginia's list of
"other" amendments specifically because it was not developed from
the existing state bills of rights protections. It related to the division
of powers between the federal and state governments and the
people. It did not relate to any specific rights. The contrary was
true for Madison's Second Amendment predecessor. It and the
other protections later incorporated into the first eight
amendments were all included in a “bill of rights” that was
developed from state bill of rights provisions that Madison
understood as protecting rights of the people against abuse by
state governments.

The Second Amendment's well regulated militia reference was, for
example, developed directly from the 1776 Virginia Declaration of
Rights language because that was the verbatim source for the 1788
Virginia Ratifying Convention's proposed Bill of Rights clause.
Madison promised to support those Bill of Rights provisions in
order to achieve ratification of the U.S. Constitution by Virginia.
It was not the historians' proffered militia powers dispute that
brought about the Second Amendment. Instead, it was clearly the
Bill of Rights dispute that resulted in addition, not only of the Second
Amendment, but of the other first eight amendments to the
Constitution as well. [See OSA pp.457-462 for Virginia's proposed
bill of rights and list of other amendments.]

The powers reserved to the states in the Tenth Amendment include
those that are, specifically, "not delegated to the United States by
the Constitution". But power to provide for arming the militia was
delegated to the United States by the Constitution. Thus, if the Tenth
Amendment is anything like the Second Amendment as the historians
claim, neither amendment protects "reserved powers of the states"
over arming the militia because it is not a reserved power of the
states, and there is no period evidence that Madison intended to
make it one.

The Constitution itself does reserve certain militia powers to the
states - specifically officering and training of the militia. The Second
Amendment has nothing more to do with these actual "reserved
powers of the states" over the militia than it does with the powers
not reserved to the states by the Tenth Amendment, such as
arming the militia. It is also clear that the Federalists, who had
super-majorities in both houses of Congress had no reason
whatsoever to alter any of the Article I, Section 8 powers they had
previously partitioned between the federal and state governments
just as they wanted them.

Conclusion - Assertion #11 is Erroneous
Madison had no intention of protecting "reserved powers of the
states" in his Second Amendment predecessor because no such
terminology is found in his proposal. Also, there is nothing similar
about the Second and Tenth Amendments. Their sources and
purposes are separate and distinct. The Second relates to a specific
right that was developed from limitations on state authority
found in the existing state bills of rights, just like the other
provisions in the first eight amendments. The Tenth Amendment
relates to proper construction of the division of powers between
the state and federal governments and the people who gave power
to both. The historians' argument about "reserved powers of the
states" being a purpose of the Second Amendment is just another
clever manifestation of the collective rights argument, which
apparently has a thousand lives and emanations in the hands of gun
control supporters.

Root Causes of Never-ending Second Amendment Dispute - Part 20

2009-05-25T23:28:00.009-04:00

Professional Academic Historians' Heller Amicus Brief a Disgrace

A George Mason Retrospective
George Mason is mentioned only once in the entire Rakove historians' Heller amicus brief, and then only for a misleading argument suggesting that the Second Amendment predecessor was intended to guarantee authority to the state governments over arming the militia (see part 18, below).

The historians' brief, ostensibly about the history of the Second Amendment, a U.S. Bill of Rights provision, fails to mention any of the relevant and essential facts that link George Mason to development of the U.S. Bill of Rights predecessors. He was the single person most responsible for demanding a federal bill of rights based on the state bills of rights. The first such demand occurred within the Federal Convention and came directly from Mason. The historians completely ignored this milestone in development of the U.S. Bill of Rights in order to emphasize their argument about development of the Constitution's militia powers as the source of a Bill of Rights provision instead. Amazingly, the historians even fail to mention that it was Mason who first brought up the subject of regulating the militia in the Federal Convention. Mason was a major player in development of the Constitution in Philadelphia.

In his Objections to the Constitution, which was published shortly after the Constitution was made public, Mason made clear the bill of rights concern of those opposing ratification. The new Constitution gave power to the federal government that specifically made laws of Congress superior, not only to the laws passed by the states, but also to the state constitutions. During the Revolution, Americans had constitutionally protected their rights against misconstruction and abuse of power by the new state government within the new state constitutions, and most specifically in declarations or bills of rights.

Thus, it was very clear to George Mason that a federal bill of rights providing the same protections found in the state bills of rights was necessary in the new U.S. Constitution. Without such a bill of rights, there was no security for liberty and the continued exercise of their constitutionally protected rights by the people of the United States. It was protection of these very rights that had largely influenced Americans to revolt against the extravagant British claims of power and to establish new state governments under written constitutions with limiting bills of rights. As subsequent events made clear, most Americans were not willing to adopt a new form of government without including these protections in a constitutional level bill of rights.

Mason was notorious for his refusal to sign the new Constitution due to the lack of a bill of rights(there were only three non-signers). Before leaving Philadelphia, Mason met with and discussed his concerns about lack of a bill of rights in the new Constitution with all of the men who later became leaders of the Pennsylvania Minority, William Findlay, John Smilie, and Robert Whitehill. It was these men who argued for a bill of rights and other amendments in Pennsylvania's ratifying convention, and Whitehill who proposed virtually a complete Bill of Rights for the Constitution based on the Pennsylvania Declaration of Rights. John Smilie mentioned that he had discussed the Virginia Bill of Rights with George Mason during debate in the convention.

Later, Mason gave a memorable speech on returning to Virginia from the Federal Convention. He indicated that he would have rather cut off his hand than sign the Constitution because it did not protect the rights of the people - strong words from a giant of American constitutionalism.

The model Bill of Rights adopted by the Virginia and North Carolina ratifying conventions was written by George Mason, who was chairman of an Antifederalist amendments committee in Virginia's convention. Shortly after its formation, and well before it was introduced in Virginia's convention, Mason sent his Bill of Rights on to New York Antifederalists. They used it as the basis of the New York Ratification Declaration of Rights. It was Mason's letter sent with the complete model Bill of Rights to New York that definitively proves the Second Amendment predecessor could not have been intended as a militia powers amendment because the committee had not yet considered any amendments on that subject.

One would think that at least some bits or pieces of this most relevant information for understanding the Second Amendment's development might have made its way into the historians' Heller brief considering that it was prepared by a large group of professional academic historians, but that is not the case. The historians, on the contrary, seem to have actually gone out of their way to separate all relevant Bill of Rights related information linking the Second Amendment to Bill of Rights development in order to make their militia powers only related argument seem the more plausible. As a result, Mason in general is out and only militia references are in. That their argument is internally inconsistent, reliant on numerous erroneous statements, and is directly contradicted by a veritable sea of period sources is well documented in prior posts of this series.

George Mason is The Man
Yet, there is even more and equally relevant information linking George Mason to development of the Second Amendment's structure, language, sources, and meaning. Mason is the man who wrote the first American state bill of rights, that of Virginia in 1776. He was the first to use a well regulated militia reference in a state bill of rights as he developed it for the lead clause of the original Mason Triad, a power limiting structure later adopted in every state bill of rights formed before the U.S. Bill of Rights. Mason Triads related to establishment of civil government and civil control of the military. In other words, they related to protection of an armed civil population.

Tracing back Mason's usage of well regulated militia language, something one would expect of any good historian, it becomes clear that the well regulated militia reference is not to government authorized forces, but rather to self-embodying defensive associations of civilians that were only possible because the people possessed and knew how to use their own arms. Mason was a very early community organizer of Fairfax county's able-bodied free men. He urged them to form companies, elect officers, and train with their own arms as an effective defensive force against government tyranny, and later referred directly to this association as a well regulated militia, simply meaning an effective militia.

These most relevant facts about George Mason's personal involvement in over a decade of early American Second Amendment related Bill of Rights development directly contradict everything that the professional historians' brief attempts to establish using only bare assertions and the academic credentials of the signatories as collateral. It is to be hoped that many more of those interested in the Second Amendment will become more familiar with the overwhelming shortcomings of the historians' brief. In this way, those who have relied upon it may see the light, and the damage it has caused in continuing the completely unnecessary and polarizing dispute about Second Amendment intent can be properly buried in the ocean of American historical facts.

[The short guide to the most relevant parts of that ocean of historical facts can be found in: The Founders' View of the Right to Bear Arms]

Root Causes of Never-ending Second Amendment Dispute - Part 19

2009-05-25T16:13:00.009-04:00

Ignored Facts, Unfounded Assertions, and the Rakove Professional Historians' Heller Amicus Brief

Returning to the George Mason quote in the professional historians' Heller brief:

"George Mason similarly imagined how the militia might be disarmed: not by the federal government confiscating weapons, but rather, “Under various pretences, Congress may neglect to provide for arming and disciplining the militia, and the State Governments cannot do it, for Congress has an exclusive right to arm them.”"[p.20]

One paragraph later, the historians assert:

Assertion #10
"Text and context both establish that the dominant issue throughout the period of ratification was the future status and condition of the militia, not the private rights of individuals. Even when Anti-Federalists spoke of the militia being disarmed, their expressed concern was not the specter of federal confiscation or prohibition of private weapons, but rather that the national government might neglect to provide arms." [p.21]

Fact Checking Assertion #10
Other Antifederalists in addition to Mason made disarming arguments related to future destruction of the militia by federal failure to arm them, which would result in the necessity of a federal standing army for defense. However, directly contrary to the historian's claim, Antifederalists also used the term disarm in the sense of federal confiscation or prohibition of private weapons. For example, an Antifederalist writing under the pseudonym Aristocrotis stated the following in a pamphlet entitled The Government of Nature Delineated:

"The second class or inactive militia, comprehends all the rest of the peasants; viz. the farmers, mechanics, labourers, etc, which good policy will prompt government to disarm." [The Origin of the Second Amendment, p.331]

Aristocrotis' statement can only be interpreted as relating to taking private arms away from all the rest of the farmers, mechanics, laborers, etc. who are not made part of a government formed select militia, which Aristocrotis had just described prior to the above statement in his pamphlet.

In another example, an Antifederalist article printed in the Philadelphia Freeman's Journal and addressed "To the PEOPLE OF AMERICA" noted that:

"[Congress] well know the impolicy of putting or keeping arms in the hands of a nervous people, at a distance from the seat of a government, upon whom they mean to exercise the powers granted in that government. . . they at their pleasure may arm or disarm all or any part of the freemen of the United States, so that when their army is sufficiently numerous, they may put it out of the power of the freemen militia of America to assert and defend their liberties, however they might be encroached upon by Congress." [OSA 211, 212]

This Antifederalist statement similarly used disarm to mean removal of all arms from the freemen of the United States, not a failure of government to provide them with arms.

Disarming arguments from the period were often stated in terms of disarming the people, arguments the historians avoided addressing by specifying Antifederalist militia disarming statements. The brief previously denied that the Founders treated the militia as the mass of the people, a completely erroneous statement documented in part 17. Both of the above Antifederalist disarming examples not only directly contradict the assertion in the brief, but they also further illustrate the fact that the historians are either largely unfamiliar with relevant period sources indicating the militia were understood as the people or they are in complete denial of period reality as documented in easily available sources.

Assertion #10 is also Misleading
The historians' assertion also misrepresents and diverts attention away from much of the disarming argument during the ratification period. In conjunction with Mason's disarming statement, it is used to further separate the clear bill of rights related disarming statements voted on in two ratifying conventions from the militia powers only related history being advanced by the historians to explain away "the right of the people to keep and bear arms" provision of the U.S. Bill of Rights. In the Pennsylvania Ratifying Convention this proposal was made:

"That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power." [OSA, p.151]

This Antifederalist disarming language was simply added to the existing Mason Triad from Pennsylvania's 1776 Declaration of Rights. The state's right to bear arms language was treated as a variant of a well regulated militia reference by the historians themselves earlier in their brief in order to divert attention away from it (see part 6, below). It is obvious that Pennsylvania's language, both the 1776 state bill of rights and the 1787 proposed federal bill of rights, was intended to protect private rights to possess and use arms for self defense, defense of the state, and in the latter case for defense of the country and for hunting, and that the use of disarming relates to preventing confiscation or prohibition of private weapons used for any and all of those purposes. The disarming language here cannot be taken in any other way. This is undoubtedly the reason why the historians felt compelled to address so many pages of their brief trying to explain away Pennsylvania bill of rights language during both periods (see parts 5 through 8 and 14).

Another Antifederalist disarming statement is the proposed amendment adopted by the New Hampshire Ratifying Convention:

"Congress shall never disarm any citizen, unless such as are or have been in actual rebellion." [OSA, p. 456]

This clearly related to preventing confiscation or prohibition of private weapons. If Congress could not disarm any citizen, it could not disarm any militiaman of his own weapons either, thus preventing disarming of the militia as then understood, the mass of the people. The historians simply divert attention away from the above clearly Second Amendment related provisions by arguing they do not contain a militia reference like the Second Amendment does.

Federalists, who were openly opposed to disarming of the people, made some of the clearest arguments about disarming them of their own arms, all of which the historians ignore here by specifying a particular use of disarming by Antifederalists. It was because of the often stated fear by Antifederalists that the people would be disarmed that Federalists offered a counter argument that disarming was not intended or possible under the proposed U.S. Constitution. Here are some examples:

"Before a standing army can rule, the people must be disarmed; as they are in almost every Kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States." [Noah Webster], [OSA, p.40]

The people must be disarmed here refers to taking private arms away from the people.

"Tyrants never feel secure until they have disarmed the people. . . .But the people of this country have arms in their hands, . ." [The Republican], [OSA, p.190]

This reference also uses disarmed to mean taking arms away from the people and prohibiting their possession.

"Congress have no power to disarm the militia. Their swords, and every other terrible instrument of the soldier, are the birthright of an American." [Tench Coxe], [OSA, p.276]

Clearly, it was not the birthright of an American to be given arms by the government. The vast majority of all small arms suitable for military defense were privately owned weapons belonging to the people who possessed them. The disarm reference related to confiscating and prohibiting privately owned arms.

"The people are not to be disarmed of their weapons. They are left in full possession of them." [Zacharia Johnson], [OSA, p. 452]

Disarmed is used here to mean confiscation and prohibition of private arms.

In addition to Federalist disarming statements relating to the impossibility of confiscation and prohibition of private arms, there were a large number of Antifederalist disarming statements directly related to a specific Pennsylvania Executive Council action calling for collection of all publicly owned arms from militiamen in the state for clearing and repair. This action did not relate to privately owned arms, but shows Antifederalists used disarm in relation to removing arms from the hands of militiamen. Antifederalist commentary there pointed out the advantage of the militia being able to rely on their own arms, which could not be collected by the government, rather than those belonging to the state (Pennsylvania provided publicly owned arms for one-fourth of its militiamen).

Conclusion - Assertion #10 is Erroneous and Presents an Extremely Misleading View of Period Disarming Arguments
Period evidence contradicts the historians that militia disarming references by Antifederalists did not relate to confiscation or prohibition of private weapons. Also, the historian's argument is misleading because disarming arguments of the period often equated the militia and the people as in the two Antifederalist examples. There are numerous other references to disarming the people from Federalists, who also opposed confiscation or prohibition of private weapons, and who also understood the people to be the militia. The historians used this assertion in relation to the Mason quote, once again, to separate militia related arms discussion from discussion of private arms, when the period sources indicate no such unnatural separation, and instead, routinely equated the militia and the people, as noted in post 17. Militia arms were overwhelmingly the people's privately owned arms.

Rather than enlightening, the historians' assertion further confuses readers about period disarming statements, thus indicating the historians are confused about the subject. Disarming of the militia during the ratification era meant disarming of the people because period sources treated them as one and the same.

Root Causes of Never-ending Second Amendment Dispute - Part 18

2009-05-24T20:32:00.008-04:00

Off-Track Militia Powers Historiography Erroneously Linked to Origin of the Second Amendment in the Rakove Heller Amicus Brief
[Updated July 18, 2009]

The heart of Professor Rakove's Heller amicus brief consists of eight consecutive pages consisting of militia powers development in the Federal Convention, subsequent ratification era dispute about those powers, culminating with Virginia Ratifying Convention debate on that subject. An Antifederalist argument about disarming the militia is the emphasized point concerning militia powers discussion in Virginia's convention. The historians point out that Virginia's convention is where the Second Amendment's antecedent language originated, ostensibly as the result of all the militia powers debate and the Virginia Convention disarming statement they have detailed and emphasized.

A George Mason statement regarding disarming the militia made in Virginia's convention is the vehicle used in the brief to link the militia powers debate to appearance of the Second Amendment's predecessor language.

"George Mason similarly imagined how the militia might be disarmed: not by the federal government confiscating weapons, but rather, “Under various pretences, Congress may neglect to provide for arming and disciplining the militia, and the State Governments cannot do it, for Congress has an exclusive right to arm them.” [p.20]

The brief points out that Virginia Federalists responded to Mason indicating that power over the militia was concurrent between the state and federal governments, thus assuring the state's ability to arm the militia. Mention of the Second Amendment predecessor is then inserted into the historians' militia powers history at this point:

"Because the Virginia convention was so evenly divided, Federalists accepted a proposal to recommend constitutional amendments to the first Congress. This was where the antecedent wording of the Second Amendment can be found, closely followed by the similar language adopted by New York two weeks later." [pp. 20-21]

While the subjects of the militia and disarming can certainly be related to the Second Amendment's language, the Second Amendment antecedent from Virginia did not result from the militia powers dispute that Mason was discussing in the quote presented by Professor Rakove. The Second Amendment instead resulted from ongoing demands for a federal bill of rights based on existing state bill of rights protections, an intense ratification era dispute that Professor Rakove virtually ignored in the professional historians' brief. Further examination of the Virginia militia powers debate details and the actual amendments proposed by Virginia make this point very clear.

The Mason quote in the brief relating to disarming the militia was his presentation of a plausible method by which the new federal government could justify a permanent standing army by destroying the militia through inaction. The government could simply fail to provide for arming and disciplining the militia. Mason's disarming argument was offered in support of the Antifederalist view that power over arming and disciplining the militia should be guaranteed to the states in the new Constitution. In fact, Mason stated exactly what type of amendment Antifederalists in Virginia desired to solve these concerns immediately after making his militia disarming related arguments:

"in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the states may arm and discipline them. With this single exception, I would agree to this part [of the Constitution]" [The Origin of the Second Amendment, p.402]

The concern expressed in the militia powers related arguments, including Mason's quote in the brief, related to guaranteeing state authority over the militia. It did not relate to adding state bill of rights protections, such as the Second Amendment predecessor, to the U.S. Constitution. At the close of Virginia's convention, Antifederalists proposed two lists of amendments - a complete Bill of Rights and a list of twenty "other" amendments, both later adopted by the Convention. All of the Bill of Rights provisions were directly based on existing state bills of rights provisions, while none of the "other" amendments were so based.

George Mason, as chairman of the Antifederalists' amendments committee, was the author of both lists of amendments. It was one of these “other” Mason prepared amendments that was specifically intended to solve the lack of state militia power concern expressed in his disarming argument.

"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." [OSA, p.460]

It cannot be more clear that it was this proposed “other” amendment that resulted from Mason's militia disarming argument in the Virginia Ratifying Convention, not the antecedent Second Amendment language from the proposed Bill of Rights.

Professor Rakove does not accurately quote the Second Amendment predecessor language that his brief suggests as the resolution of Mason's disarming argument and the militia powers debate. This language comes from Article 17 of the proposed Bill of Rights:

"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; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power." [OSA, p. 459]

This Bill of Rights proposal is obviously based directly on the existing 1776 Virginia Bill of Rights Mason Triad, the major difference being addition of a right to bear arms variant added to the well regulated militia language at the beginning. [See part 7 for development of the original Mason Triad.] Making use of both right to bear arms and well regulated militia language from existing state bills of rights, it is the original two-clause Second Amendment predecessor.

There is absolutely nothing in this Second Amendment antecedent language indicating any intent to guarantee state authority over the militia or to shift such power from the federal government back to the states. Both clauses of this provision are taken from existing state government limiting bill of rights with the intention of limiting the new government in exactly the same way the state governments were limited. Existing state bill of rights provisions could not have been intended to alter or shift powers between the state governments and the new federal government because all of their protections had been adopted years before the U.S. Constitution was written.

The Rakove professional historians' Heller brief presentation of Second Amendment history has ripped the Second Amendment out of the Bill of Rights, torn it in half, and discarded the right of the people to keep and bear arms clause in order to advance the militia clause as relating solely to protection of state authority. But this argument is directly contrary to the origin of the Second Amendment predecessor clauses in existing state government limiting bills of rights. Blindly advancing a militia powers only intent for the Second Amendment, the professional historians have failed to connect any of the proposed ratification era protections for the right of the people to keep and bear arms with their immediate state bill of rights antecedents.

The more one studies the details and facts relating to the origin of the Second Amendment, the more it becomes evident that the historians' have made a major historical blunder by emphasizing militia powers development and related disagreements during ratification as the origin of the Second Amendment while virtually ignoring the extensive period demands for a federal bill of rights based on existing state bill of rights protections. The latter arguments resulted in development of the Second Amendment, not the former. This is the very reason why the Rakove professional historians' Heller amicus brief contains so many erroneous statements and inconsistencies, as documented in previous parts of this series.

Root Causes of Never-ending Second Amendment Dispute - Part 17

2009-05-07T01:31:00.012-04:00

Ignored Facts, Unfounded Assertions, and the Rakove Professional Historians' Heller Amicus Brief
Updated May 8, 2009

After their presentation of militia powers development in the Federal Convention, which was discussed below in part 10, the historians proceeded to discuss militia matters relating to arms during the ratification period while virtually ignoring the widespread and intense bill of rights dispute from that period. That there were incessant demands for the protections found in the state bills of rights, all of which included Second Amendment predecessors, goes entirely unmentioned by the historians, who are supposedly presenting the history of a Bill of Rights provision. Many of the historians' statements regarding the ratification era debate are completely contradicted by period sources and in some cases by evidence from within their own brief. For an example of the latter, take this statement from the historians:

Assertion #8
"Discussion of citizens' access to firearms during the ratification debates of 1787-1788 focused nearly exclusively on the comparative merits and risks of a standing army or the militia." [p.18]

Fact Checking Assertion #8
The above assertion is directly contradicted by the historians' own brief because they distinctly noted that the first three arms protecting provisions addressed in state ratifying conventions, which were treated out of order later in their brief, related to "private ownership of firearms." Those three provisions were directly addressed in the previous three parts of this series by placing them back in their proper developmental order. None of these provisions were combined with references to a well regulated militia, something the historians have used to misinterpret the purpose of the right to arms provisions that well regulated militia references were later combined with. The historians separated the three early arms proposals from any connection with the Second Amendment even though they all clearly protected the right of the people to keep their own arms. Pennsylvania's provision prevented individuals from being disarmed, as did Samuel Adams' proposal and that adopted by the New Hampshire Ratifying Convention.

Further discussing ratification debate about "the comparative merits and risks of a standing army or the militia," the historians stated that:

Assertion #9
"these exchanges treated the militia not as the disembodied mass of the people, but as a legal institution subject to concurrent national and state administration." [p.19]

Fact Checking Assertion #9
This statement is directly contradicted by numerous period sources, only a few of which are presented here. The use of the term militia in Hamilton's The Federalist #29, a source referred to on the previous page in the historians' brief, directly refutes their statement. Hamilton provides three different definitions of the militia in this text alone:

"the great body of the yeomanry and of the other classes of citizens"
"the people at large"
"the whole nation"
[OSA, pp.197,198]

Contrary to the historians' claim, Hamilton's descriptions treat the militia as the mass of the people, not as an institution. For another Federalist's viewpoint, look back at part 12 and Tench Coxe's Federalist Mantra (below). Coxe describes the militia as "ourselves" in an article addressed to "the Citizens of America." He also describes the militia as "the yeomanry of America from sixteen to sixty." Were the yeomanry of America from sixteen to sixty an institution? Would one describe an institution as ourselves, meaning the citizens of America?

Also in direct conflict with the historians' claim, this time from an Antifederalist, is George Mason's statement in the Virginia Ratifying Convention:

"Who are the militia? They consist now of the whole people, except a few public officers." [OSA, p.430]

Mason's view also contradicts the historians since he treats the militia as the mass of the people, not as an institution.

Conclusion - Assertions #8 and #9 are Both Erroneous
It is not true that discussion of citizens access to firearms during the ratification period focused nearly exclusively on the merits and risks of a standing army or the militia as the historians asserted. As noted by the historians themselves, proposals protecting private possession of arms were discussed and voted on in a number of the state ratifying conventions. It is also not true that such discussion during the period treated the militia as an institution rather than as the mass of the people. Alexander Hamilton's usage in The Federalist #29, Tench Coxe's usage in A Pennsylvanian III and George Mason's usage in the Virginia Ratifying Convention all directly contradict this assertion by the historians. A considerable amount of other period historical evidence also contradicts the historians regarding these two points (see 800 pages of period sources in The Origin of the Second Amendment for numerous other examples).

Those relying on the historians' brief for their understanding of period sources and history should once again consider the fact that, in spite of their claims, the historians are either not overly familiar with relevant period sources, or they are so biased as not to notice when those sources contradict their own statements. What is more likely is that both of these possibilities are in play.

Root Causes of Never-ending Second Amendment Dispute - Part 16

2009-04-26T16:04:00.004-04:00

Historians Ignore the Bill of Rights History of the Second Amendment

The arms protecting provision adopted by the New Hampshire Ratifying Convention, even though recognized right along with the Pennsylvania minority and Sam Adams Massachusetts proposals in the professional historians' Heller amicus brief as relating to “private ownership of firearms," was treated in exactly the same way as the other two provisions discussed in prior posts. All connection to the ongoing political struggle for a federal bill of rights was completely overlooked and no relationship to the future Bill of Rights provision protecting the people's right to arms noted. Even though New Hampshire's proposals obviously related to protections later found in the First, Second, Third, Fifth, Seventh, and Tenth Amendments, the historians disposed of the arms provision without further comment on that state's Bill of Rights proposals than by quoting the Second Amendment predecessor and stating it was "a formula unique to the discussions of 1787-1788." They provide no bill of rights related connection whatever, even though their brief is purportedly a presentation of the Second Amendment's history.

Here is the New Hampshire arms provision in its original bill of rights related context:

"X. That no standing army shall be kept up in time of peace, unless with the consent of three fourths of the members of each branch of Congress; nor shall soldiers, in time of peace, be quartered upon private houses, without the consent of the owners.
XI. Congress shall make no laws touching religion, or to infringe the rights of conscience.
XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion".[The Origin of the Second Amendment, p.446]

Within these three bill of rights related proposals are found the very first ratifying convention adopted predecessors for freedom of religion, the right to keep arms, and against quartering of soldiers, protections found in the First, Second, and Third Amendments. New Hampshire's language that "Congress shall never" make laws to "disarm any citizen" is exactly the type of language it used in its protection of religious freedom. In fact, New Hampshire doubles up on the strongest of restrictive language by declaring that "Congress shall make no laws" about religion or "to infringe" rights of conscience, adding restrictive language of the type later used in the Second Amendment to the exact quote of the restrictive language later used in the First Amendment.

New Hampshire's use of First Amendment type restrictive language to protect a Second Amendment related right is used by the historians to classify it as "unique" and ignore the clear relationship to the Second Amendment's strong protection for the right to keep arms. Failure by the historians to relate New Hampshire's bill of rights related arms proposal, or the prior ones in the Pennsylvania and Massachusetts conventions, to the ongoing political struggle for a federal bill of rights and later development of the Second Amendment is typical for this brief.

Such failure stands in stark contrast to discussion of a period Bill of Rights proposal by Richard Henry Lee in the Confederation Congress (misidentified as the Continental Congress). Professor Rakove's brief singles out Lee's proposed Bill of Rights to further a militia argument and to emphasize that it had no arms provision. That this is the sole mention of a ratification era “Bill of Rights” within the brief is bizarre considering the massive amounts of historical information relating to this subject and the stated intent of the brief to present the history of a U.S. Bill of Rights provision. As in this case of the New Hampshire arms proposal and R.H. Lee's proposed Bill of Rights, the historians' routinely pursue less relevant sources while disassociating clearly Second Amendment related bill of rights provisions rather than associating and connecting them historically to development of the Second Amendment.

This is a further reason why the historians brief is completely unreliable.

Houghton, Michigan Tea Party Pictures - April 15, 2009

2009-04-16T19:20:00.008-04:00

Pictures from the April 15, 2009 Houghton, Michigan Tea Party Protest

At least 150 participants assembled at noon at the Houghton County Courthouse to begin the day's protest activities.

The protesters then marched three blocks to the Veterans' Memorial Park located at the south end of the Portage Shipping Canal lift bridge.

There were at least 200 participants at the Veterans' Memorial Park Tea Party Protest at 1:00PM on April 15, 2009.

A number of speakers were scheduled to talk during the afternoon starting at 1:00PM.

The weather was exceptionally nice for the Tea Party Protest. A number of the passing vehicles on Montezuma Avenue (just behind the photographer) honked their horns when passing by, even though there were no signs requesting a supporting honk from passing motorists.

Tea Party Protest Inspired Repost And Update: Thomas Jefferson on Government Deficit Spending

2009-04-14T12:15:00.006-04:00

Jefferson on the Moral Prohibition Against Saddling Posterity With Our Debts

Thomas Jefferson's views on government debt can be inserted into the modern debate over deficit spending by the Federal Government as if they were specifically meant for the present "crisis." Jefferson argued that "we act as if we believed" that "the aggregate body of fathers may alienate the labor of all their sons, of their posterity, in the aggregate, and oblige them to pay for all the enterprises, just or unjust, profitable or ruinous, into which our vices, our passions, or our personal interests may lead us." Because "an individual father cannot alienate the labor of his son," Jefferson stated that we are "unauthorized to saddle posterity with our debts, and morally bound to pay them ourselves".
[Bergh, ed., The Writings of Thomas Jefferson, XIII, 358]

Jefferson's views on federal deficit spending, federal usurpation of state authority, and the expansion of federal executive authority are right to the point in light of modern trends in federal government policy.

“I am not for transferring all the powers of the States to the General Government and all those of that government to the executive branch. I am for a government rigorously frugal and simple, applying all the possible savings of the public revenue to the discharge of the national debt, and not for a multiplication of officers and salaries merely to make partisans, and for increasing, by every device, the public debt on the principle of its being a public blessing.”
[Dumbauld, ed., Jefferson: His Political Writings, 47]

A way to approach straightening out the mess that is occurring in Washington DC is to insist that the Constitution be obeyed. Only state governments, not the federal government, should exercise powers reserved to the states by the Constitution, and only the state governments should tax for those purposes, not the federal government. The federal government has no constitutional power over education or health care because these are clearly reserved to the states by the Tenth Amendment. Also, it should be evident that no one can justifiably be taxed by any level of government to pay for the gambling debts and losses due to open speculation by others, whether by individuals speculating in the housing market or corporations speculating in credit default swaps.

Root Causes of Never-ending Second Amendment Dispute - Part 15

2009-04-06T13:21:00.010-04:00

Historians Consistently Ignore Second Amendment's Bill of Rights History

The professional historians' made this claim in their Heller amicus brief:

"Had Anti-federalists continued to want to push for the constitutional protection of firearms, ample time remained to muster support in the nine states yet to act on the Constitution. . . . If the Pennsylvania dissenters tried to place the question of a private right to arms before the body politic, their fellow Americans declined their summons." [p.24]

There is no doubt that the Antifederalist Pennsylvania minority placed their "bill of rights" including a private right to arms before the American body politic because their Dissent was one of the most widely reprinted of all ratification era political texts. They were trying to protect rights already found in their own state's declaration of rights. Directly contrary to the historians' claim, Americans did respond to the minority's demands for a bill of rights containing private right to arms protection. This occurred through the votes of delegates in six subsequent state ratifying conventions, five of which adopted such bills of rights.

The first convention to follow Pennsylvania's with a bill of rights vote was Massachusetts, where Samuel Adams attempted to add protection for freedom of the press, religion, petition, the right of peaceable citizens to keep arms, against unnecessary standing armies, and prohibiting unreasonable searches, all protections found in his own state's declaration of rights. Adams' bill of rights motion was defeated by the Federalists.

Federalist Jeremy Belknap was present during the Massachusetts Ratifying Convention debates. His period commentary regarding Adams' bill of rights protections follows:

"It was matter of speculation how Mr. Adams came to propose such amendments. . . . In a week or two afterward came along a protest of the Pennsylvania minority, in which these very things are objected to the Constitution which he [Adams] proposed to guard against by his motion. It is said the copies of these protests were purposely detained on the road; but it is supposed Adams had a copy in a letter before the Convention was dissolved." [The Origin of the Second Amendment, p.263 n4, emphasis in original]

Belknap was not the only period actor to link the Pennsylvania Minority's arms protecting bill of rights to later bill of rights proposals. Frederick Muhlenberg, speaker of the House of Representatives, linked the bill of rights proposals of the Pennsylvania minority's 1787 Dissent to the future U.S. Bill of Rights provisions under consideration in Congress in 1789 as follows:

"tomorrow we shall take up the Report & probably agree to the Amendments proposed, & which are nearly the same as the special Com[m]itte[e] of eleven had reported them. . . .it takes in the principal Amendments which our [Pennsylvania] Minority had so much at Heart. . ." [The Origin of the Second Amendment, p.799]

It turns out that Samuel Adams' bill of rights arms proposal, which the historians themselves recognized as relating to the "private ownership of firearms" (see Part 14), was also understood by the Boston Independent Chronicle and the Philadelphia Independent Gazetteer as specifically included within the House Bill of Rights predecessors that Speaker Muhlenberg wrote about above. This means constitutional protection for the "private ownership of firearms" was widely understood as included in the Second Amendment's House predecessor. Here is the excerpt from these newspapers:

"It may well be remembered that the following "amendments" to the new constitution for these United States, were introduced to the convention of this commonwealth [Massachusetts] by . . . Samuel Adams. . . .every one of the intended alterations, but one, have been already reported by the committee of the house of Representatives in Congress, and most probably will be adopted by the federal legislature."

This is Sam Adams' amendment relating to the private ownership of firearms:

"And that the said Constitution be never construed to authorize Congress. . . to prevent the people of the United States who are peaceable citizens, from keeping their own arms;" [The Origin of the Second Amendment, pp.701-702]

All of Samuel Adams intended alterations but one about standing armies were actually added to the U.S. Constitution by amendment. Those added were protection for freedom of the press, religion, petition, the right of the people to keep arms, and protection against unreasonable searches. These are all protections for private rights.

Even though the historians recognized both the Pennsylvania minority and Samuel Adams arms protections as relating to "private ownership of firearms," they refused to recognize their bill of rights context and the fact that these protections were already found in their respective state's declaration of rights. Ignorance of the fact that the Heller amicus brief argument from fifteen academic historians is internally inconsistent historically and directly controverted by the most relevant period sources is a root cause of never-ending Second Amendment dispute.

Challenge to Supporters of the Heller Dissent

2009-03-31T01:33:00.012-04:00

Self-Check Accuracy of the Historians' Heller Amicus Brief
[Updated January 20th, 2012]

This is a challenge to those who believe that the Heller case was wrongly decided. If you are one of those who think that the four dissenting U.S. Supreme Court justices in the case had the historical facts on their side and made the better argument about the Second Amendment, here is the challenge. Verify for yourself whether statements in the professional historians' amicus brief, which the dissenting justices based their history upon, are supported by historical facts.

All that is necessary is to read the statement from the historians' brief below, then click on the direct page links to Google Books posting of F.N. Thorpe's Federal and State Constitutions to verify the accuracy of the statement in the historians' Heller amicus.

Here is the specific statement in the historians' brief to self-check for accuracy:

"In only two states (Pennsylvania in 1776, Massachusetts in1780) were they [state declarations of rights] made part of the actual constitutions.” [pp.9-10]

First, check North Carolina's 1776 Constitution, Article XLIV, page 2794 of Thorpe, Volume 5. This article of the constitution specifies "That the Declaration of Rights is hereby declared to be a part of the Constitution of this State, and ought not to be violated, on any pretense whatsoever." This fact directly contradicts the statement in the historians' brief.

Next, check Vermont's 1777 Constitution, Section XLIII, page 3748 in Thorpe, Volume 6. This section also specifies "That the declaration of rights is hereby declared to be part of the Constitution of this State, and ought never to be violated, on any pretense whatsoever." Both North Carolina's and Vermont's provisions were copied almost verbatim from the 1776 Constitution of Pennsylvania. These provisions make two direct contradictions between period historical sources and the above quoted statement found in the professional historians' Heller brief.

Perhaps another contradiction is needed to emphasize the point being made here. If so, check the New Hampshire 1784 Constitution on page 2453 of Thorpe, Volume 4. [This link no longer works.] Page 2453 of Thorpe, Volume 4, indicates that New Hampshire's 1784 "Bill of Rights" is "Part I" of its Constitution, and page 2458 indicates that "PART II" is "The Form of Government". These facts also directly contradict the statement made in the Rakove historians' brief that only the declarations of rights of Pennsylvania and Massachusetts were "made part of the actual constitutions."

Such glaring and recurring contradictions between relevant historical documents and the simple claim made in the brief call into serious question the reliability of the historians' amicus, which is a foundation of Justice Stevens' Heller historical dissent.

It cannot be conceived that these fifteen historians have purposefully misrepresented the point of their statement to the U.S. Supreme Court. The only alternatives are that the historians may not as familiar with relevant period history as claimed in the brief, or the historians' statement is a misprint. However, the latter is not the case because Professor Jack Rakove of Stanford University, the author of the brief, made and emphasized exactly the same erroneous assertion to Professor Eugene Volokh of UCLA during a Bloggingheads TV diavlog shortly after the Heller decision. [at 31:40 in the presentation]

These considerations narrow down to one the reason for the error in the professional historians' brief. They are actually not overly familiar with the most relevant historical sources for understanding the Second Amendment's history, and, as a result, the historians' Heller amicus brief is historically unreliable.

For those willing to accept what their own eyes can see and consider the possibility that Heller was rightly decided because the dissent relied on what is inherently unreliable, read the Root Causes of Never-ending Second Amendment Dispute series posted on this blog. It demonstrates that the above contradiction, analyzed in part 1, is merely the tip of a huge iceberg of erroneous statements, internal contradictions, fallacious arguments, and off-track history that make up the historians' Heller amicus brief.

Root Causes of Never-ending Second Amendment Dispute - Part 14

2009-03-26T15:39:00.004-04:00

Fallacious Arguments, Rearranged History, and the Historians' Heller Amicus Brief

In order to further bolster the militia-centric argument in the historians' brief and divert attention away from the Second Amendment's actual Bill of Rights developmental history, Prof. Rakove presents the arms proposals made within state ratifying conventions in a substantially different order than that in which they were developed. The last two states to ratify, Virginia and New York, which included both right to arms and well regulated militia language in their proposals, are presented first, even though they are from late June and early July of 1788. The first three conventions, Pennsylvania, Massachusetts, and New Hampshire, which only included right to arms related language, are presented last and in reverse chronological order even though they are the earlier proposals. North Carolina's proposal including the exact provision as Virginia is ignored completely even though it was developed last.

Prof. Rakove's discussion of the right to bear arms proposal in Pennsylvania's 1787 Ratifying Convention, which was the first developed, is located dead last among such period proposals even though it was actually developed first ahead of five other arms related bill of rights proposals. This first-formed last-discussed approach seriously interferes with understanding the actual historical development of the political struggle to obtain a federal bill of rights during ratification and results in a barrage of erroneous statements in the brief. For this reason, all of Professor Rakove's arguments about specific arms protections proposed in state ratifying conventions are analyzed in this series in their proper chronological order of development.

The opening brief statement about discussion of the earliest arms provisions from the ratification era is:

"In contrast to the numerous discussions of the militia during the ratification debates, explicit references to the private ownership of firearms were few and scattered. The three noteworthy statements come from the Pennsylvania, Massachusetts, and New Hampshire conventions." [p.22]

After this statement, the brief addresses middle conventions, which will be discussed in a future post in proper developmental order. The first state ratifying convention was called by Pennsylvania and assembled in late November of 1787 at Philadelphia. One-third of its delegates opposed ratification of the Constitution, a major reason being lack of a federal bill of rights. Delegate Robert Whitehill proposed fifteen amendments to the Constitution that he described as a “bill of rights.” A Federalist majority of two-thirds opposed all of his proposed amendments. The arms related proposal of the minority is misquoted in the historians' brief, and only the first clause of the article containing it is presented. Thus, the entire Article proposed by Whitehill is presented here:

"7. That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power." [The Origin of the Second Amendment, p. 151]

The above provision is virtually a verbatim copy of Pennsylvania's 1776 Declaration of Rights Mason Triad (see Part 7) with language added to the Second Amendment predecessor. Also, the same Robert Whitehill who introduced this provision in 1787 helped write the 1776 original version. Prof. Rakove conveniently ignores these relevant facts, making no connection to the earlier version of this bill of rights related language.

Prof. Rakove states that it would be an incorrect reading of Whitehill's provision to accept it as evidence “that the founders thought of the right to bear arms as ensuring a private right to possess weapons.” [p.23]

The first problem for Prof. Rakove is that this statement directly contradicts his previous statement about Pennsylvania's convention related provision presented above.

The five reasons given in the brief to support this statement about Whitehill's proposal are examined below. These are all diversionary fallacious arguments.

“First, the dissenters who endorsed this proposal comprised only a third of the Pennsylvania convention."

The number who supported or opposed Whitehill's amendment indicates nothing about what its words indicate about the founders view regarding private possession of arms. This argument is a logical fallacy. Pennsylvania's Federalist majority, in addition to opposing Whitehill's Second Amendment related proposal, also opposed amendments relating to provisions found later in the First, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Amendments of the U.S. Bill of Rights. This brief entirely ignores the Bill of Rights related import of Federalist opposition to rights protections and the political struggle by Antifederalists in support of a bill of rights throughout ratification.

“Second, as previously noted, the reference to “the defense of themselves and their own state” had particular connotations in Pennsylvania, tied not to an individual’s right to defend his home, but to the colonial government’s failure to organize effective militia units prior to independence.”

As demonstrated in Parts 2 and 3 of this series, Pennsylvania history relative to a right of individual arms possession directly contradicted the historians' opinions as stated in their brief. Besides, this diversionary claim cannot explain away the provision's clear “no law shall be passed for disarming the people or any of them” language. If people have a right to bear arms for defense and killing game they must have a private right to possess arms. This argument is not only historically unfounded but also fallacious.

“Third, the proposed formula against "disarming" leaves ample room for police-power regulation by recognizing "real danger of public injury from individuals" as a legitimate basis for public action."

Rakove's third argument also does not back up the professor's specific claim about what the founders understood based on the provision and is thus fallacious. Whitehill's language could not be clearer that private possession of arms was guaranteed except for convicted criminals and extremely dangerous individuals.

"Fourth, the dissenters appeared disinclined to push this right too far. There is no further discussion of the private use of firearms in the explanatory passages of the Dissent." [p.24]

The lack of further discussion in a subsequent publication does not back up Professor Rakove's claim about what the language shows about the founders view on private ownership of arms. This is the fourth fallacious argument in a row about the same point.

"Fifth, and most important, these two clauses fell stillborn on the larger debate that continued to rage for months. . . . Had Anti-Federalists continued to want to push for the constitutional
protection of firearms, ample time remained to muster support in the nine states yet to act on the Constitution. Once published, however, these clauses of the Dissent were politically inert. If the Pennsylvania dissenters tried to place the question of a private right to arms before the body politic, their fellow Americans declined their summons." [p.24]

In direct contradiction to these statements, there were in fact five subsequently developed arms provisions in state ratifying conventions after Pennsylvania's, all of which included period language commonly understood as protecting an individual's right to possess and use arms. The two directly following Pennsylvania's were described by Prof. Rakove himself as relating to “private ownership of firearms” (see first quote at top of post).

This fifth argument connsists of a set of fallacious statements, none of which can enlighten regarding whether Whitehill's provision was understood as a private right to possess weapons or not. These statements, which appear directly before the final sentence about the ratification era in the brief, divert reader attention entirely away from the actual historical facts. Thus, not only are Prof. Rakove's final arguments above fallacious, they are directly contradicted by the period evidence once again and result in another complete inconsistency by Professor Rakove within the historian's brief.

The five arms provisions from subsequent conventions mentioned above will be carefully examined in following posts as numerous additional historical errors, inconsistencies, and fallacious arguments are exposed in the historians' Heller amicus brief.

Root Causes of Never-ending Second Amendment Dispute - Part 13

2009-03-24T03:12:00.006-04:00

Professor Jack Rakove and the Historians' Heller Amicus Brief

For a slight change of pace, this post looks at who wrote the historians' amicus brief and examines two accurate statements within it to see exactly how such references are used in support of the historians' grotesquely inaccurate argument.

This series has been very harsh in its criticism of the fifteen academics who signed on to the historians' Heller amicus brief. That will not change. However, the fact is that only one of them actually wrote the brief, probably with help from a few of the co-signers. Most of those who signed probably had little or no input to the brief, and it is likely that a few never even read it, adding their support based entirely on the historical reputation of the author, Jack Rakove. Rakove, professor of history at Stanford University, has taken credit (or blame, depending on your viewpoint) for writing the amicus brief submitted to the U.S. Supreme Court by fifteen historians supporting Washington DC's gun ban in the Heller case. In the future, this brief will be described as either the Rakove brief or historians' brief.

The brief's citation to Gordon S. Wood's book, The Creation of the American Republic, 1776-1787, is used in support of the statement that legislative supremacy was the leading principle of the new American state governments. Wood did state that "their legislatures represented more than the supreme lawmaking authority in their new states." [p.162]

Since the Rakove brief presents this argument and the Woods citation immediately prior to a series of erroneous statements claiming that the state declarations of rights did not have constitutional status nor were they legally binding upon state legislative powers, it appears that Woods generally backs up the Rakove brief's argument. They seemingly agree on the legislative supremacy idea. However, elsewhere in Woods book, he completely contradicts the Rakove brief's argument that the state declarations did not limit state legislative authority, just as the period sources presented in Parts 1 through 3 of this series contradict it. [pp.271-273] The period sources are always better to rely on than secondary sources like Woods' history to determine the period understanding. However, when the argument in the brief is directly contradicted not only by the period sources but also by a specific secondary source cited in it, the term "unreliable" becomes a vast understatement for describing the historical value of the brief.

Even the most innocuous statements in the Rakove brief result in misleading information for the reader. An example is the fourth sentence after the Woods cite that refers to the state declarations of rights, indicating:

"They have also been faulted for being less comprehensive than modern readers might expect them to have been.2" [p.10]

This statement by itself is completely irrelevant although true. Virginia's Declaration of Rights did not protect freedom of speech so not all rights were included in every declaration. [OSA, pp.747-749] Footnote #2 provided in the brief, however, directs the reader's attention to two civil rights laws that do not contain a "right to arms" or "right to keep and bear arms" provision.

There are two very misleading aspects for any reader associated with this innocuous true statement and its footnote. First, comparing civil rights laws, which are alterable by statute law, to state declarations of rights that are not alterable by statute further denigrates the constitutional status of the declarations of rights, which the brief had already been denigrating erroneously. Second, shortly after this statement, the brief equates “well regulated militia” provisions with “right to bear arms” provisions in the state declarations. Since every state declaration of rights had one or the other, none were lacking in an arms related provision, even though some might not contain the exact language quoted in the footnote. This type of misleading information represents another problem of consistency within what is a very flawed brief. If well regulated militia provisions are the equivalent of right to arms provisions, as Professor Rakove claims in the brief, then regarding arms provisions, none of the state declarations of rights are "less comprehensive than modern readers might expect them to have been."

UPDATE: Jefferson on Government Spending in Relation to Modern Problems

2009-03-23T14:55:00.004-04:00

Thomas Jefferson and Inter-generational Theft

For those who appreciated the wisdom of Jefferson as presented in a previous post, consider his equally sound thoughts about inter-generational theft. Jefferson used the unjustness of a man giving away his son's labor for his son's lifetime as the obvious reason why it was unjust for all men to give away all of their sons' labor during all of their sons' lifetimes. The latter of course referred to actions taken by government officials as government policy supposedly under government authority. Today there are some major economic problems. Jefferson's clear thinking on economic issues relating to public policy might indicate what the hidden problem is and lead to recognition of a completely different and better solution than letting things go from very bad to much worse in the hands of those largely responsible for the situation.

The Modern Problem
The current economic situation is largely the result of two separate problems. The first is government policy that has forced lending institutions to loan money for homes to those who cannot actually repay the loans. Due to the government's policy requiring unsound loans for housing, many people have purchased homes much more expensive than they would otherwise have bought. Others have purchased more than a home, they have engaged in extensive speculation in the housing market, buying up houses, especially in a few parts of the country, to make extensive profits. The second problem involves some of the largest financial institutions that have engaged in what amounts to gambling or blatant speculation through the medium of credit default swaps, betting on the likelihood of various large businesses failing. Because of the failure of Freddie and Fanny due to unsound loans caused by equally unsound public policy, the failure of various major financial institutions has become likely, and as a result of a possible string of failures, literally trillions of dollars may be owed to those speculating in credit default swaps.

Modern Inter-generational Theft
The government has responded by assuring those who have speculated will be made whole by Americans through their federal taxes, even if it requires the labor of all men's sons for all of their lives to pay for it. Think about the amount of money that a newborn American owes in future taxes to pay for the gambling debts of those, many of whom have apparently given profusely to federal politicians' campaigns. Don't forget to add in all the other programs funded by debt and the extensive and increasing list of planned federal entitlements imposed. One of the tea party protest children somewhere in the country recently held a sign indicating he was only eight but already owed more than $36,000.

Why?
That Americans ever gave any level of government authority to require the repayment out of Americans' taxes of gambling debts and losses due to open speculation is obviously not the case, regardless of whether a contract was involved in the gambling or not. So, exactly where did federal legislators and administration officials get this authority? Apparently it is simply the result of politicians ignoring the power actually given them in the U.S. Constitution and doing whatever they please whenever they want. That many of the financial institutions that are receiving astronomical amounts of money from our government to cover their gambling losses also gave very sizable sums of money to the legislators in charge of overseeing the financial sector smacks of corruption.

The scale of this activity combined with the lack of clarity about exactly what Americans are paying for and WHY is rather disturbing. Some bonuses for AIG employees recently publicized have resulted in a dog and pony show that will probably result in the real problem and the really huge amounts of money, thousands and probably hundreds of thousands times more than the bonuses involved, being hidden from view. These bonuses, how they were handled, and WHY they should be paid are the tiny tip of a massive iceberg of money flow that needs to be recognized and properly dealt with to help prevent running future generations into debt as a political "favor" to those who spend big bucks on political campaigns.

The Audacity of Criminal Enterprises
The terms that come to mind relative to blatant political contributions by gamblers and bailing out gamblers by politicians using tax dollars are these - audacious criminal enterprise. For those who think this terminology too harsh, has there been the slightest attempt yet to alter the policies that require banks to make unsound home loans or to prevent those with the money from buying powerful politicians?

Exactly where in the U.S. Constitution does it say that the government has power to tax Americans, even entire future generations by borrowing, for the purpose of reimbursing the gambling losses of certain wealthy individuals and companies that contribute large amounts of money to powerful politicians' campaigns? In addition to audacious criminal enterprise, the term that comes to mind is - unconstitutional.

Root Causes of Never-ending Second Amendment Dispute - Part 12

2009-03-21T00:52:00.006-04:00

Ratification Era Arms Arguments Misconstrued in the Historians' Heller Amicus Brief

Regarding the ratification period arms related arguments, the historians state that:

"Discussion of citizens' access to firearms during the ratification debates of 1787-1788 focused nearly exclusively on the comparative merits and risks of a standing army or the militia." [p.18]

The historians view militia related discussion solely as indicating government authorized militia. Thus, their statement above is entirely misleading. They do not recognize any relationship between the militia mentioned in the Second Amendment and its actual predecessor language in the state bills of rights, which were all restrictions on state authority in favor of an armed civil population rather than references to government authorized militia. The state declarations of rights provisions uniformly related to an armed population that not only authorized the revolutionary era state governments but also secured the civil population's ultimate control over government raised military force. The same bill of rights related concepts of civil control of the military hold true for much of the arms related debate during ratification, although the historians consistently ignored it by refusing to relate the Second Amendment to its state declaration of rights predecessors or to the ongoing period bill of rights dispute.

There were two opposing and oft repeated ratification era arguments about arms and military force appearing in the writings of the period's political partisans that related to bill of rights history much more so than to the historian's proffered militia powers history. A common Federalist Mantra, asserted by those supporting ratification and arguing against a bill of rights, indicated, in its simplest form, that military tyranny was impossible in America because the people were armed. The Antifederalist Mantra was the contrary view from those opposing ratification and supporting a bill of rights. This mantra was a warning that the new government's overwhelming control of military force, whether standing army, select militia (understood as a part-time standing army), or militia in general would be used in such a way as to disarm the people and impose military tyranny and oppression. Simple inclusion in a federal bill of rights of the protections already existing in every one of the state declarations of rights would solve this bill of rights related problem. The historians obviously miss the bill of rights related point of these arguments, that an armed populace is necessary to prevent tyranny. [For more information on the Federalist and Antifederalist Mantras, see The Founders' View of the Right to Bear Arms.]

Thus, it was not only the Antifederalists that painted a clear picture of an armed populace during the ratification debate. Federalist Mantras presented the reverse arms related argument, which was also often unconnected with government authority over militia. Here is the very detailed Federalist Mantra of Tench Coxe presented in his pseudonymous A Pennsylvanian III article addressed to the citizens of America (Feb. 20, 1788):

"The power of the sword, say the minority of Pennsylvania is in the hands of Congress. My friends and countrymen, is is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army must be tremendous and irresistable. Who are these militia? are they not our selves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. What clause in the state or foederal constitution hath given away that important right."

Coxe went on to discuss military power and its constitutional authorization in America, but he emphasized that "the unlimited power of the sword is not in the hands if either the foederal or state governments, but, where I trust in God it will ever remain, in the hands of the people." [Origin of the Second Amendment, pp.275-276, all emphasis is in original]

An interesting point about this Federalist Mantra is that Coxe was inspired to write it by James Madison's own Federalists Mantra found in The Federalist #46.

The historians' statement about arms discussions is misleading because it ignores the nature of numerous Federalist and Antifederalist Mantras, all of which emphasize the essential importance of an armed populace to prevent tyranny. It was the state declarations of rights arms provisions, which the historians misinterpreted and refused to connect with development of the Second Amendment, that protected the existence of an armed populace against government power. This concept is inherently dependent upon protection of individual rights.

Root Causes of Never-ending Second Amendment Dispute - Part 11

2009-03-19T16:08:00.006-04:00

U.S. Bill of Rights Controversy Omitted in the Historians' Heller Amicus Brief

A major political dispute about the need for a federal bill of rights raged during the 1787-1788 ratification debate over the U.S. Constitution. In spite of the fact that it was this major political controversy that led directly to development of the first eight amendments from the existing state declarations of rights, the historians ignored these well documented facts and argued otherwise in the case of the Second Amendment. Remarkably, in the last two-thirds of the their brief, the subject of a bill of rights is only mentioned twice, the second being a red herring argument that will be addressed in a future post. The earlier reference is simply passing mention and involves a standing army proposal by Richard Henry Lee in the Confederation Congress as part of a "Bill of Rights" for the proposed Constitution then under consideration there. R.H. Lee's proposal began:

"It having been found from universal experience, that the most express declarations and reservations are necessary to protect the just rights and liberty of mankind from the silent, powerful and ever active conspiracy of those who govern; and it appearing to be the sense of the good people of America, by the various bills or declarations of rights whereon the government of the greater number of the states are founded, that such precautions are necessary to restrain and regulate the exercise of the great powers given to rulers. In conformity with these principles, and from respect for the public sentiment on this subject, it is submitted, -
That the new constitution proposed for the government of the United States be bottomed upon a declaration or bill of rights, clearly and precisely stating the principles upon which this social compact is founded. . ." [OSA p.27]

The historians ignored this relevant bill of rights related information in Lee's proposal and instead emphasized there was no "firearms" related provision from him. The fact is Lee also failed to include any provision relating to freedom of speech, prevention of quartering troops in time of peace, or any specifics regarding the numerous protections later found in the Fifth and Sixth Amendments. Lee's suggestions were not taken directly from the existing state declarations of rights the way later proposals for a federal bill of rights demonstrably were.

Overly focused on the lack of a "firearms" reference and inclusion of a standing army reference, the historians completely overlooked Lee's comments about the state declarations of rights - comments that directly contradicted their own previous interpretation regarding such provisions' lack of legally binding authority on state legislative power. Obviously, R. H. Lee understood that the state bills of rights "restrain and regulate" state governmental power. He also connected the concept of the power restricting state bills of rights to a new bill of rights for the proposed U.S. Constitution, something the historians abjectly failed to do anywhere in their brief. In fact the historians go out of their way to avoid any such links.

It is not as if Lee's linking the need for a federal bill of rights to the prior power limiting state bills of rights represented a rare period understanding and argument. The ratification era is replete with such references and understandings (see source collection cited above). The historians have simply decided to ignore the actual extensive period historical evidence and advance their personal opinions about the development of the Bill of Rights and its second provision instead, just as they ignored George Mason's seminal attempt for a bill of rights within the Federal Convention. The Bill of Rights history ignoring approach destroys the historical value of these fifteen academics' brief, which was supposed to insure that the U.S. Supreme Court would have "an informed understanding of the history that led to the adoption of the Second Amendment." [p.1]

Utterly worthless for its stated purpose due to lack of relevant historical information and inclusion of erroneous assertions about predecessor language, the historians' Heller brief provides a fundamentally false history of the Second Amendment that four Justices of the Supreme Court used as a foundation for their dissenting opinion in the case.

Root Causes of Never-ending Second Amendment Dispute - Part 10

2009-03-15T02:18:00.007-04:00

Bill of Rights History Ignored in the Historians' Heller Amicus Brief

Diverting entirely away from the history of the U.S. Bill of Rights, fifteen historians instead pursue a history about militia powers development in the Federal Convention, disagreement over militia powers during ratification, and the preparation of an amendment to solve the militia powers dispute as the explanation for the existence of the Second Amendment. In their eyes, it is the Second Amendment that was specifically developed to solve the state/federal militia powers dispute. Their militia powers dispute based history simply ignores the actual genesis of the extensive Bill of Rights ratification era debate and starts with a discussion of the militia powers development within the 1787 Federal Convention instead.

The beginning salvo of the historians' non-rights based argument about Second Amendment development is this assertion:

Assertion #7
"The one issue addressed at the 1787 [Federal] Convention that could affect citizens' access to firearms concerned the militia." [p.14]

Fact Checking Assertion #7
On the contrary, there is only one issue addressed at the Federal Convention that would affect citizens' access to firearms and also directly relate to future development of the U.S. Bill of Rights and ALL of its first eight amendments. That issue was the demand for a bill of rights as part of the Constitution. It was initiated by George Mason, who tried to obtain a bill of rights committee and suggested a bill of rights could be developed within hours from the state declarations of rights (ALL of which contained Second Amendment predecessors). This much more relevant Bill of Rights related issue is completely ignored by the historians.

It must be kept in mind that the historians' Heller case brief supposedly relates to the history and intent of the Second Amendment, which is a U.S. Bill of Rights provision. Here is the actual beginning of demands for the Second Amendment and the other first eight provisions of the U.S. Bill of Rights (all taken from state bills of rights) from within the Federal Convention. It is the bill of rights related exchange of September 12, 1787:

"Mr. MASON . . .He wished the plan had been prefaced with a bill of rights, and would second a motion, if made for that purpose. It would give great quiet to the people, and, with the aid of the state declarations, a bill might be prepared in a few hours.
Mr. GERRY concurred in the idea, and moved for a committee to prepare a bill of rights.
Mr. MASON seconded the motion.
Mr. SHERMAN was for securing the rights of the people, where requisite. The state declarations of rights are not repealed by this Constitution, and, being in force, are sufficient . . .
Mr. MASON. The laws of the United States are to be paramount to the state bills of rights." [OSA p.12]

Mason's attempt to obtain a bill of rights committee in the Federal Convention was defeated. Mason went on to become the most prominent Antifederalist leader promoting a bill of rights during ratification because of his notorious refusal to sign the Constitution due to lack of a bill of rights.

Something that is apparent from the exchange between Mason, Gerry, and Sherman was that all three understood the state declarations of rights as intended to secure the rights of the people against violation by the existing state governments. This historical information directly contradicts the historians' prior argument regarding that matter again and further demonstrates the erroneous foundation it is based upon.

Conclusion - Assertion #7 is Erroneous
Clearly, the militia (meaning government militia power) was not the only issue addressed at the Federal Convention in 1787 that could affect citizens' access to firearms. The historians' assertion is erroneous because they have ignored Bill of Rights related information that is much more relevant to the actual developmental history of the Second Amendment. The Second Amendment is a Bill of Rights provision and was developed directly from state declaration of rights provisions. There was an unsuccessful attempt in the Federal Convention to add a bill of rights to the Constitution based upon the state declarations of rights. That issue was the clear genesis of the major ratification era dispute over the need for a bill of rights as part of the Constitution. Later addition of the first eight amendments to the Constitution was a direct result of the ratification era bill of rights debate, which had as its object addition of the state declaration of rights protections in a federal bill of rights.

Root Causes of Never-ending Second Amendment Dispute - Part 9

2009-03-12T21:57:00.004-04:00

American Bills of Rights Committed to Oblivion in the Professional Historians' Heller Amicus Brief

Retrospective on State Bill of Rights Arguments
Up to this point a third of the way through their argument, the historians have at least been discussing Bill of Rights related history, even though they were persistently in error regarding the intent of the American declarations of rights and their arms related provisions. The actual purposes of these American provisions, to limit legislative power, was a major change to and improvement on the earlier English Bill of Rights, which only limited the Crown. However, that is not how the historians portrayed American bills of rights to the Supreme Court in their Heller amicus brief. On the contrary, the historians claimed the state bills of rights were just lists of principles or common law protections with no legally binding intent.

That not one of these fifteen historians, all of whom claim familiarity with early American history, was able to grasp this point and correct the errors found in their brief regarding something so fundamental and well documented is extremely disturbing. It is especially so since this very issue was a major point that James Madison elaborated on in his Bill of Rights amendments introduction speech to Congress in 1789. Madison considered comparisons of the English Bill of Rights and American bills of rights as "inapplicable" because "there is too great a difference in the case to warrant the comparison." In what specific respect were they so different that comparison was inapplicable? In the same respect that the historians' brief argued the exact opposite of Madison's clear understanding – whether they were intended to limit legislative power or not. The historians asserted they were not so intended, but Madison's stated view was that the state declarations of rights were intended to "raise barriers against power in all forms and Departments of Government..." [OSA p.657] This direct contradiction between the views of the Bill of Rights' author and the historians' personal opinions demonstrates to what little extent their legal brief can be relied on regarding the Second Amendment's history and intent.

The numerous erroneous statements relating to this particular matter in the first third of the historians' brief must be kept in mind because, after misstating the intent of the state declarations of rights and their arms related provisions, the historians bury them all in oblivion never to be mentioned again. For the following two-thirds of the historians' brief, it is as if these clear predecessors of the Second Amendment had never even existed.

Virginia's 1788 Ratifying Convention's proposed Bill of Rights, which James Madison promised to support in order to gain ratification by that state, contains virtually all of the 1776 Virginia Declaration of rights provisions, including its exact well regulated militia language. This salient fact relating directly to the Second Amendment's development is never mentioned by the historians. Neither are the essential facts that George Mason wrote both documents and originated the demand for a Federal bill of rights in the Federal Convention. [FVRBA pp.83, 134-147] For relevant historical information on the Bill of Rights nature and development of the Second Amendment, readers, including the Justices of the U.S. Supreme Court, were forced to go elsewhere because that essential historical information is absent from the historians' Heller brief. The entirety of the relationship between the existing American state declarations of rights arms provisions and the U.S. Bill of Rights' Second Amendment is found only in the historians' introductory summary argument of their brief and consists solely in use of the term “analogous” to describe their relationship to the arms provision in the English Bill of Rights.

Historians Reverse Course - Abandon All Bill of Rights History
After having trashed the actual power limiting intent of the the state bills of rights and their arms related protections, the historians proceeded to argue that discussions supporting and opposing the new Constitution's militia powers are the history of Second Amendment development. The only problem with this approach is that the Second Amendment, along with the other first eight amendments that it is part and parcel of, does not have a militia powers amending history. Instead, it has a Bill of Rights related history not found in the brief.

The demand for a Federal bill of rights was based on desire for protections found in the state bills of rights and originated in the 1787 Federal Convention. Failure of the Federal Convention to include such a bill of rights in the proposed Constitution resulted in refusal of prominent members to sign it. These facts go completely unmentioned by the historians in a brief ostensibly about Bill of Rights history. Substituted for this essential and directly relevant information is a largely irrelevant discussion of militia powers development in the Federal Convention. The historians argue that Federalist concern for Antifederalist arguments about misuse of militia powers was the reason the Second Amendment was developed, but they fail to mention the very clear amendment, which had nothing to do with separately listed state bill of rights based amendments, that indicated "each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia. . ." [OSA p.460] Clearly, it is this non-bill of rights related militia powers amendment that related to Antifederalist concerns about Federal misuse of militia power, not the Second Amendment. A completely ignored essential fact in the brief is that the Second Amendment was developed directly from state declaration of rights language limiting state governments just as the other first eight amendments were.

In short, after destroying and permanently burying the actual predecessors of the Second Amendment, the historians divert entirely away from its relevant Bill of Rights related history and present the history of a militia powers amendment in its place as if they were one and the same. They were not the same, and the historians completely off-track “history” of the Second Amendment will be documented in future parts of this series.

Root Causes of Never-ending Second Amendment Dispute - Part 8

2009-03-07T01:53:00.006-05:00

Commentary on Ignored Facts and the Historians' Heller Amicus Brief

[Updated September 26, 2011]
The treatment in the historians' Heller amicus brief of 'well regulated militia' provisions as variations of 'right to bear arms' provisions is perfectly legitimate. [p.11] What is not correct, however, is the professional historians' interpretation regarding the purpose of these provisions. The period evidence directly contradicts their assertion that these provisions do not relate to an individual right of private ownership and personal use of arms. These Second Amendment predecessors were understood as protection for a defensively effective armed civil population, a concept based upon individual rights. The best way to proceed in examining this point is to closely examine and compare the Second Amendment's earliest American bill of rights predecessor variants. These are the lead Mason Triad clauses from the Virginia and Pennsylvania Declarations of Rights that provide the most information about the fundamental concept they present.

Virginia's language from June of 1776 was:

"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" [OSA p.748]

Pennsylvania's language from August of 1776 was:

"That the people have a right to bear arms for the defence of themselves and the state" [OSA p.754]

Even though to modern readers these two provisions undoubtedly appear as quite different concepts at first glance, there are actually a great number of similarities between them. First, they both clearly relate to defense of the state. Second, they mention the people, indicating that it is the people's defense of the state that is being secured in some way by these state declaration of rights provisions. Third, both unquestionably relate to arms, and more specifically to arms that would be useful to the people for defense of the state.

In addition to these textually related similarities, there are a number of others of tremendous significance for a proper understanding. Both variations are state declaration of rights provisions intended to guard the people against abuse of power by the new government the people were forming. Thus, in spite of the historians' erroneous assertions to the contrary, they were understood as limits on the power of the state legislatures. Also, both provisions were leading Mason Triad clauses, an indication that they were actually related to civilian control over government raised military force. This concept is dependent on the civilian population possessing and knowing how to use their own arms. Finally, the history of these provisions directly contradicts the historians' interpretation and fully supports the period understanding of them as protections for individuals possessing and using their personally owned arms for organized defense.

It was demonstrated clearly in Posts 5 and 6 that Pennsylvania's colonial history directly contradicted the government controlled "military matters" interpretation the historians gave for Pennsylvania's “people have a right to bear arms” language. Examining Virginia's history to further clarify its declaration of rights language, we find that there is a very close parallel with that of Revolutionary era Pennsylvania. It turns out that Virginia's well regulated militia language was also related to the people associating for defense using their personally owned firearms and without government approval. In fact, Virginians began associating for defense against the British military threat approximately nine months prior to hostilities in Massachusetts. By January of 1775, defensive associations had been formed in many Virginia counties, including Fairfax and Hanover. These associations were styled independent militia companies, indicating they were independent of the government's authority.

George Mason, who later authored the very Virginia Declaration of Rights language under discussion here, used "well regulated militia" much earlier in January 1775 to describe the defensive association he had been helping to organize since September of 1774. That association involved the free men of Fairfax County taking up their own arms, forming companies, electing their own officers, and training themselves for effective mutual defense. These actions are exactly the same private arms rights based actions taken by the people of Pennsylvania in the face of British military tyranny. Pennsylvania's 'right to bear arms' and Virginia's 'well regulated militia' were, in fact, based upon the same fundamental right - the right of individuals to make use of their privately owned arms and to associate for effective mutual defense in the face of threatened government military tyranny. Both of these earliest American Second Amendment predecessor variants were a direct result of British government military action intended to force the people to comply with government edicts that were viewed as unconstitutional violations of Americans' rights.

But wait, there's more. Not only did Mason's well regulated militia usage originate in the much earlier defensive association related document, so also did his reference to its foundation in the free men being the "natural" strength of a "free" government. Even the concept Mason included in the second clause of Virginia's 1776 Mason Triad first appeared over a year earlier in the same Mason prepared document relating to the independent company or defensive association. It indicated that standing armies are ever dangerous to liberty. The development of well regulated militia language in relation to voluntary defensive associations in Virginia is explored in in Chapter 2 of The Founders' View of the Rights to Bear Arms.

Every reference in the four state declarations of rights that used Mason's 'well regulated militia' reference indicated that it was the "natural" defense of a “free” state or government (one did drop the free reference). Similarly, every one of the four bear arms provisions in the state declarations of rights indicated that "the people” have a right to bear arms for defense of the state. [For the state declarations of rights, see OSA pp.747-780 and FVRBA pp.61-77] Americans in Virginia and Pennsylvania relied upon their privately owned firearms and their ability to voluntarily associate for organized defense independent of government authority early in the American Revolution. It was these defensive activities of Virginians that led to its 'well regulated militia' reference, and it was Pennsylvanians' defensive activities that resulted in its 'people have a right to bear arms' language. Such defensive activities and the state declaration of rights provisions that resulted from them were fundamentally based upon the rights of private individuals to possess and personally use their own arms for defense.

The heart of the historians' overall argument is that the well regulated militia reference of the Second Amendment indicates it is all about government controlled militia and not related at all to private arms ownership or personal use of arms, such as in voluntary militia or defensive associations. Yet the period evidence indicates that the earliest American bill of rights related predecessors of its language, both the 'well regulated militia' AND 'the people have a right to bear arms' provisions of the state declarations of rights, were in fact based upon the use of private arms by their individual owners to cooperate for mutual defense of the state against military tyranny and without support in law. These provisions were intended to assure the future ability of the civil population to guard against and prevent tyranny from government raised military force by placing protection for an armed populace in constitutional level law as part of state declarations of rights. The above relevant period bill of rights related information directly contradicts the historians' Heller brief argument.

Root Causes of Never-ending Second Amendment Dispute - Part 7

2009-03-04T00:37:00.017-05:00

The Historians' Heller Amicus Brief and Ignored Facts Examined

The professional historians brief mentioned three "statements, either bundled together in one article or linked in successive articles of the state declarations of rights" that related to "a well regulated militia, the danger of standing armies, and the importance of maintaining civilian control over the military." [p.10] Only mentioning these three-part bundles in passing, the historians misinterpreted Pennsylvania's version (see previous post) and later used that misinterpretation to divert away from relevant bill of right history to an entirely irrelevant military history for the Second Amendment. It is essential for a proper understanding of the Second Amendment's bill of rights predecessors found in every state declaration of rights that these three-part statements be further examined.

Mason Triads and Second Amendment Predecessors
The fact is that every one of the eight state declarations of rights extant when the U.S. Bill of Rights was written included a Second Amendment predecessor. These arms related provisions were always the leading clause in a three-part structure, the second part of which indicated standing armies were dangerous to liberty. The third part invariably declared that the military would be subordinate to and governed by the civil power.

These tri-part structures have been named Mason Triads in The Founders' View of the Right to Bear Arms, which examines their development in Chapter 4. The first of these triads was written by George Mason as Article XIII of Virginia's Declaration of Rights of June 12, 1776. This original version of the Mason Triad, which begins with the earliest American bill of rights related predecessor of the Second Amendment's first clause, declared:

"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." [OSA pp.748-749]

Seven additional states subsequently adopted declarations of rights and each uniformly adopted a Mason Triad, some with variation of the Second Amendment related leading part. Three states copied George Mason's well regulated militia reference, generally shortening the provision by dropping the arms reference and the definition that the body of the people composed a well regulated militia. These four well regulated militia references were all Revolutionary era documents. During the American Revolution it was obvious to everyone exactly who composed a well regulated militia - the body of the people with their own arms.

Four other states, beginning with Pennsylvania's own Article XIII on September 11, 1776, replaced the well regulated militia language with a declaration that the people have a right to bear arms for defense as the lead Mason Triad language. Pennsylvania's Mason Triad, which is the earliest of this version and the original American bill of rights related predecessor of the Second Amendment's second clause, stated:

"That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power." [OSA p.754]

Three subsequent state declarations of rights copied Pennsylvania's Second Amendment related language with each dropping the reference to "defence of themselves" and varying the defense of the state language slightly. Massachusetts also added language regarding the people having a right to keep arms. This was undoubtedly because the British, who were in military control of Boston, had disarmed the townspeople of their personal arms after the Battles of Lexington and Concord and had been involved in seizing powder in numerous locations even prior to then. These four "people have a right to bear arms" provisions were also all Revolutionary era documents. During the American Revolution it was obvious to everyone that they had a right to take up their own arms for defense against the threat of government tyranny imposed by military force.

In the previous three posts it has been demonstrated, contrary to the professional historians' claims, that Pennsylvania's “people have a right to bear arms” language was intended to protect private ownership and personal use of arms, both for defense of themselves AND for defense of the state. Pennsylvania's language taken in context, its colonial history, and its state government limiting Mason Triad all indicated that the historians' interpretation was completely wrong. Additionally, the historians had entirely misconstrued the purpose for state declarations of rights, erroneously claiming that they were not legally binding and were merely lists of principles and common law rights, which would have allowed the state governments to alter them at will.

As noted in the previous post, the historians treated right to bear arms protections as equivalent to well regulated militia provisions. Logically, if the historians are correct about them being variations of each other, it means they are incorrect about their interpretation of well regulated militia references in bills of rights because they are wrong about the meaning of right to bear arms references such as Pennsylvania's. Think about this. The validity of their treatment and its effect on their interpretation of Second Amendment predecessors will be examined in detail in the next post.

Root Causes of Never-ending Second Amendment Dispute - Part 6

2009-03-03T00:11:00.009-05:00

Ignored Facts, Unfounded Assertions, and the Historians' Heller Amicus Brief

The following is Article XIII from Pennsylvania's 1776 Declaration of Rights:

"XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power." [OSA p.754]

In further support of their opinion that the above language regarding the people's right to bear arms did not relate to the right of private ownership or personal use of arms, the historians rely on the two subsequent clauses from the declaration of rights and state that:

Assertions #6
"the opening clause of Article XIII immediately preceded two other clauses reiterating the usual condemnation of standing armies and endorsement of civilian supremacy. The Article as a whole is thus concerned with military matters." [p.11]

Fact Checking Assertion #6
On the contrary, Declaration of Rights Article XIII as a whole is concerned with limiting government power and assuring civil control of the government's military forces.

Immediately before this statement, the historians indicated that there were “well regulated militia” references in the state declarations of rights and analyzed variations among them. In their analysis, they treated “right to bear arms” provisions, including the above Pennsylvania “people have a right to bear arms” language, as simply variations on the well regulated militia references found in four other state declarations of rights. Thus, to the historians, Pennsylvania's right to bear arms language was merely a well regulated militia variant, and it related to military matters under government control.

A revealing point about their approach is that the historians never once mentioned that the four “bear arms” provisions among the eight state declarations of rights all began with exactly the same language indicating that it is “the people” who have a right to bear arms for defense. They always identified these provisions as right to bear arms provisions, and they interpreted them as if they actually stated that the people composing a government regulated militia have a right to bear arms.

The historians have used “military matters” here to mean government controlled military matters, just as they previously used “no militia at all” (see Part 5) to mean no government controlled militia at all. Their attempt here is to use the appellation “military matters” to magically transform power limiting provisions of the state declaration of rights into provisions describing government control over anything that relates to the military.

Exactly what military matters do these three clauses related to? The second clause of Article XIII warns that standing armies in time of peace are dangerous to liberty and indicates the government ought not keep them up. This is a clear reference to military matters over which the government's power is being restricted by the people who are establishing the new government. Standing armies are dangerous to liberty – the liberty of the people – and the government ought not to keep them up because the people wish to live in liberty and not be oppressed by a standing army. That is why this particular power restricting provision is included in Pennsylvania's Declaration of Rights.

The last clause mentions that the military will be subordinate to and governed by the “civil power.” Exactly who are the military being mentioned in that clause? Any standing army or troops certainly would qualify as the military. Any militia called out by the government and in service would qualify as the military as well. But what the historians are suggesting is that the people whose right to bear arms is protected in the first clause should be considered as the military as well. Are the people referred to in the first clause the military, or are the people whose right to bear arms is protected the civilians?

The historians have tied all of the bear arms provisions of the state declarations of rights to the militia. Militia is a term never defined by the historians, but one that they implicitly accept as entirely military in nature. Such a view is far, far from accurate. The militia, regardless of how extensive or restricted a body they are viewed as, were always understood to be civilians who functioned as soldiers only when called out for service. The people reference in the first clause is not to soldiers in service, but to all of Pennsylvania's civilians. It is not a military reference, and its only relationship to military matters under government control is that the civilians whose right to bear arms is protected in the first clause are the “civil power” mentioned in the last clause.

Conclusion - Assertion #6 is Erroneous
The purpose of the clauses in Article XIII are the direct opposite of what the historians have attributed to them. These clauses do not deal with military matters under complete government control but instead relate to restrictions on government power. The people of Pennsylvania, who authorized its state government and limited that government by the Declaration of Rights, are not only the civilians who have the stated right to bear arms for defense but also those who constitute the civil power that the military is subordinate to and governed by.

Root Causes of Never-ending Second Amendment Dispute - Part 5

2009-03-01T15:51:00.011-05:00

Ignored Facts, Unfounded Assertions, and Pennsylvania's History in the Historians' Heller Amicus Brief
Updated September 10, 2010

Equating the right to bear arms and well regulated militia references found in state declarations of rights, the historians treated 'the people have a right to bear arms' provisions found in four state declarations of rights simply as variations on the 'well regulated militia' references found in the other four. In their view, all those arms related provisions were intended to allow for robust state regulation of arms because they were not a limit on legislative authority.

The historians argued that the first eight state declarations of rights were not intended to limit legislative authority. Their assertions on that matter have been shown to be erroneous due to direct conflict with relevant historical sources. The arms related protections in those state declarations of rights therefore cannot be taken a priori as subject to state legislative control as argued in the historians' brief.

As demonstrated in the previous post in this series (#4, below), Pennsylvania's Declaration of Rights provision that "the people have a right to bear arms for defence of themselves and the state" contradicts the historians' general assertion that none of the states' arms provisions related to individual rights for private purposes. Aware that Pennsylvania's arms provision "appears open to a broader interpretation" that contradicts their position, the historians have pursued two additional arguments in further support of their opinions, first, by reliance on two other closely related Declaration of Rights clauses and second, by reference to the colony's history.

Regarding that history, their brief states:

Assertion #5
"Pennsylvania had no militia at all during the two decades preceding independence. Unlike most colonies, its legal assembly continued to meet into the spring of 1776, but without mobilizing a provincial militia against the British threat. As a result, extra-legal committees arose in Philadelphia that were strongly supported by the province's voluntary militia units." [pp.11-12, emphasis added]

Fact Checking Assertion #5
As noted in Part 3, the historians' brief is far from devoid of inconsistency, and the above statements constitute another case in point. Exactly how is it possible for there to be voluntary militia in Pennsylvania during the period under discussion if there was no militia at all during that period? This clear inconsistency is another piece of evidence that there is something fundamentally wrong with the professional historians' brief regarding Second Amendment history.

The historians obviously meant that there was no legally established militia at all in Pennsylvania during that period, a distinction that removes the inconsistency of their statements and is historically accurate. Existence of two different kinds of militia - that formed by law and that formed by armed individuals voluntarily associating for mutual defense without any law – indicates the historians are fully aware that effective militia units established without legal support indeed existed prior to independence. Thus, their argument that Pennsylvania's “people have a right to bear arms for defence” language relates to legally established militia and was intended to allow for robust regulation of private firearms and complete regulation of all militia related arms is in error. Since the historians are incorrect about the fundamental purposes of state declarations of rights, why, we might ask, does Pennsylvania's right to bear arms language not actually apply to the voluntary militia they mentioned? This interpretation would actually fit the constitutionally stated purpose for Pennsylvania's Declaration of rights – to prevent violation of its protections on any pretense whatever by government.

Historical evidence from the period under discussion indicates that an effective militia could be formed just as well by voluntary association or private agreement of armed individuals without legal authority as could be accomplished by law. [FVRBA p.39] There certainly were such voluntary militia in Pennsylvania. They were normally referred to as associators partly because colonial Pennsylvania never had a militia law like those of the other colonies. Militia was a term much less used there than elsewhere in America, although associators, who spontaneously self-embodied for defense only during times of emergency, were sometimes referred to as militia in colonial Pennsylvania.

Pennsylvania's government hired troops on a few occasions. Other than that, however, lack of compulsory militia laws meant that all other organized defense within the colony was accomplished by individuals capable of armed self-defense taking up their privately owned arms and associating together for mutual defense. Such defensive self-embodying associations were formed on numerous occasions whenever threats originated and defense was necessary.

For a period of only one year starting in late 1755, a defensive association was established and authorized by law in Pennsylvania. However, even that defensive law was entirely voluntary and it was disallowed by the British for that very reason. The law did not required anyone to engage in defense related duties and did not require anyone to possess arms. Thus, there was never any duty of Pennsylvanians to bear arms controlled by government in colonial Pennsylvania's entire 90+ year history nor any requirement to possess arms for such a duty. These historical facts bring the assertions in the historians' brief into serious question again.

Pennsylvanians possessed a variety of arms that they used for hunting, target shooting, killing dangerous and crop destroying animals, self-defense, defense of their family and home, and defense of their community. Associating for organized mutual defense was accomplished by neighbors assembling with their personally owned firearms, forming companies, electing their own officers, and training themselves as an effective defensive military force – all without sanction of law. All of the firearms Pennsylvanians owned, which clearly included those normally used for military purposes, were useful for the defensive purposes later mentioned in the state's Declaration of Rights. In short, the people, meaning all the individuals residing in the colony, exercised unrestricted rights to possess arms and to use those arms for defensive purposes in the colony. For a history of such defensive associations in colonial Pennsylvania, see The Founders' View of the Right to Bear Arms, Chapter I.

The foregoing facts about Pennsylvania colonial history indicate why the patriots of that state used "the people have a right to bear arms for the defence of themselves and the state" in their 1776 Declaration of Rights. The drafters were simply stating what had always been the case previously, and more specifically, exactly what the case was at the very moment their Declaration of Rights was being established. For over a year prior to that language being written, the people of Pennsylvania had been associated with their own arms “for the defense of their lives, liberty and property” against the British without any support in law from Pennsylvania's government. This defensive activity directed against British government troops was entirely dependent on the people possessing their own firearms and ammunition in the first place. Thus, this right was fundamentally based upon individuals being able to protect themselves with their own arms and to associate for mutual defense using their own arms.

Completely unmentioned in the historians' brief and the secondary source they cite in support of their argument is the fact that power to make use of Pennsylvania's freemen and their sons for defensive purposes was specifically given to the new state government in the body of the state's constitution. That omission by the historians leads one to conclude that the declaration of rights' arms provision was intended for the same purpose. However, delegation of power to the government over the men of the state for defensive purposes in the body of the constitution and protection of the people's right to bear arms for defense of the state against violation by the state government have separate, distinct, and contrasting purposes. The constitution authorizes legitimate government military powers, while the declaration of rights limits all powers by preventing violation of the stated fundamental right by the state government.

Conclusion - Assertion #5 is Errounous
Pennsylvania's colonial history directly contradicts the historians' argument. Historical evidence indicates there was widespread individual ownership of arms in colonial Pennsylvania, something that the historians recognize. That history also indicates that on numerous occasions those arms were made use of by their owners for organized defense at their owners' discretion whenever danger threatened and without authorization under law, something that the historians completely ignore. It is clearly this individual rights based defensive activity that the Pennsylvania Declaration of Rights referred to when it stated that “the people have a right to bear arms” for defense of the state.

As can be seen, there is a simple reason why the historians' statements regarding bill of rights arms provisions are erroneous and the relevant historical facts directly contradict them. They are wrong. Their interpretation of the Second Amendment is without historical foundation.

[Analysis of the historians' Pennsylvania related argument relying on two other declaration of rights clauses will appear in the next post.]

Thomas Jefferson on Government Spending

2009-02-22T12:47:00.003-05:00

“I am for a government rigorously frugal and simple, applying all the possible savings of the public revenue to the discharge of the national debt, and not for a multiplication of officers and salaries merely to make partisans, and for increasing, by every device, the public debt on the principle of its being a public blessing.”

From a letter to Elbridge Gerry of January 26, 1799 [Edward Dumbauld, ed., Jefferson: His Political Writings, Bobbs-Merrill, Indianapolis, 1955, p.47]

Commas and the "Original" Version of the Second Amendment

2009-02-17T23:35:00.004-05:00

The Original Version of the Second Amendment
One of the interesting claims made by some who have argued Second Amendment intent in the past was that nothing could be determined about the subject without relying on the "original" version of the amendment. Such a claim was advanced to indicate that only the first version, that from Congress, could be relied upon because the "original" Second Amendment had three commas that formed four different clauses. The extensive historical facts relating to Bill of Rights development prior to and during the First Congress in dealing with two clause predecessors were not overly important to such interpreters nor helpful for their interpretation. Knowledge of the Second Amendment's ratification history makes any argument based on comma content appear rather trivial. So what is known about Second Amendment commas and ratification by the states?

When Congress developed the proposed amendments to the U.S. Constitution in 1789, it was working with separate copies of the amendments that were printed by and for the use of the House and the Senate, respectively. [FVRBA pp.190, 198] Handwritten changes were made to those copies as the final language emerged within each house of Congress. After final wordings were decided upon and the houses agreed, President Washington sent handwritten parchment copies of the proposed amendments to the thirteen original states for ratification action by their state legislatures.

All About Commas
Regarding commas, the first question on this topic would be, were all of these at least 14 handwritten copies of the proposed amendments exactly the same with respect to the number of commas in the Second Amendment's language? This question cannot be answered definitively unless all thirteen copies sent to the states survive, can be located, and can be compared to the copy retained by Congress. The particular copy saved in the National Archives has three commas. Ratification Period versions that were predecessors of this language consisted of two clauses developed from the two different forms of the Mason Triads found in the Revolutionary Era state declarations of rights. The Philadelphia Federal Gazette printing of the proposed amendments from November 28, 1789 exhibits the proposed Fourth Amendment (later to become the Second Amendment when ratified) with only one comma. [OSA p.716]

Ratification by the State Legislatures
Exactly what transpired within each state legislature in dealing with the proposed amendments is not known, but it is most likely that copies of the amendments were printed by the various legislative bodies so each member of the legislature would have a printed copy to refer to, just as members of Congress relied on their own printed copies within each house.

After ratification by these legislative bodies, many of the state legislatures prepared a copy of their ratified amendments to be returned to the Washington administration as notification of such ratification. Some apparently did not do so because those particular state legislatures adopted all of the proposed amendments and simply indicated they had taken that action. As for those states that returned copies of the amendments ratified, with respect to the Second Amendment, no two of these are exactly alike regarding the number of commas and the words with leading capital letters within them. One even substituted an ampersand symbol for the word "and" in the second clause of the Second Amendment. These facts illustrate what would be common knowledge to anyone who has read a large amount of Founding Era documents. Punctuation (and leading capitalization of nouns) had little or no interpretive meaning then compared to something written in more modern times. Commas were often used rather profusely then and capitalization of the leading letter in all nouns was not uncommon. In other words, these variations were not viewed at the time as affecting the meaning of the Second Amendment's language in any way.

Regarding commas found in the eight different versions of the Second Amendment returned as ratified from various state legislatures, there was at least one of each with no, one, two, and three commas. [OSA pp.720, 726, 728, 730, 732] The original sources of the Second Amendment's clauses, the leading Mason Triad clauses in the original state declarations of rights, came in two versions - 'well regulated militia as natural defense' and 'right of the people to bear arms for defense'. [FVRBA pp.65, 72] This simple historical fact makes it evident that the Second Amendment has a fundamentally two clause structure. The fact that the Second Amendment was based upon these two different descriptions of a defensively effective armed civil population made the two clause structure obvious to the Founders no matter how many commas (or caps) a copyist might have added or deleted within its language.

Jefferson's Official Imprint
As a final observation on these interesting Second Amendment variations, Thomas Jefferson as Secretary of State in the Washington Administration prepared an official printing of the amendments. This is the version that he authenticated as being the amendments proposed by Congress, ratified by the state legislatures, and made part of the Constitution under the ratification procedure set forth in Article V. Jefferson's official imprint of the Second Amendment has one middle comma with only the leading word, "A", of the sentence capitalized. [FVRBA pp.221-222]

The argument from those who have insisted that the "original" copy of the Second Amendment from Congress containing three commas must be consulted to fully understand its intent is contradicted by these numerous official versions of the Second Amendment as ratified by the state legislatures as well as by Jefferson's printing. Clearly, Jefferson's official imprint, as the National Archives refers to it, is the official version of the ratified Second Amendment recognized and authenticated by the executive branch of the Federal government itself.

Commas Don't Count
The point here is that it is rather futile and potentially misleading to argue the intent of a sentence written at that time in history and based almost exclusively on how many commas it contained. Arguments about comma count within the "original" copy of the Second Amendment add no clarity to discussion of its intent and have often been used to divert attention away from the Second Amendment's actual Bill of Rights history and context. A full understanding of Second Amendment developmental history makes the meaning of its language very clear and helps avoid the pitfalls associated with deciding meaning based on the number of commas contained in the "original" version.

Root Causes of Never-ending Second Amendment Dispute - Part 4

2009-02-10T00:22:00.006-05:00

Ignored Facts, Unfounded Assertions, and the Historians' Heller Amicus Brief

Having made several erroneous assertions supporting the proposition that the state declarations of rights were not intended as limits upon state legislative authority, the historians moved on to address the arms related provisions within them and made this assertion regarding those provisions:

Assertion #4
"None of the modest variations among the formulae used by different states suggest that the right to bear arms vested in individual citizens for private purposes." [p.11]

Fact Checking Assertion #4
In order to more fully comprehend the bill of rights related purpose and context of the arms related provision found in the 1776 Pennsylvania Declaration of Rights, it and several other provisions and excerpts that are helpful for better understanding period usage are presented here beginning with the title:

"A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH, OR STATE OF PENNSYLVANIA

I. That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.
II. That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding: . . ." [OSA p.752]
. . . . .
XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.
XIII. That the people have a right to bear arms for the defence of themselves and the state;. . ." [OSA p.754]

Section 46 of the Pennsylvania Constitution stated:
"The declaration of rights is hereby declared to be part of the constitution of this commonwealth, and ought never to be violated on any pretence whatever." [OSA p.755]

Nowhere in their Heller amicus brief do the historians mention who it was that the state declarations of rights indicated have a right to bear arms - "the people". Pennsylvania's Declaration of Rights clearly protected an individual's natural, inherent, and inalienable rights to freedom of religion, to defend life and liberty, and to protect property. It similarly protected an individual's right to freedom of speech, writing, publishing, and bearing arms for defense, both of self and the state. These protections were directed against misconstruction and abuse of power by the government and were intended to protect the individuals who were inhabitants of the state.

Conclusion - Assertion #4 is Erroneous
The historians' assertion that Pennsylvania's "the people have a right to bear arms for the defense of themselves" was not describing a right inherent in individuals for private purposes is erroneous. The provisions of Pennsylvania's Declaration of Rights and the period terms and usage found within it directly contradict their assertion. Individuals in Pennsylvania clearly had stated constitutionally protected rights to freedom of religion, to defend life and liberty, to protect property, to speak, to write, to publish, and to bear arms for defense of themselves and the state.

The Meaning of 'Shall Not Be Infringed'

2009-02-08T13:44:00.014-05:00

UPDATED Monday, April 13, 2009

As a result of Second Amendment dispute, it has been suggested that to infringe relative to the fundamental right to keep and bear arms means only to completely destroy the right, and that extensive "reasonable" regulations are legitimate and do not infringe the right. As an example, it has been claimed that a complete ban on certain types of firearms is a “reasonable” regulation and would not violate the "shall not be infringed" restrictive language. A contrary understanding is that infringe means to encroach upon or narrow the right in any way and that the purpose for the "shall not be infringed" language was to prevent regulation of the right.

An excellent method for determining how extensive the Bill of Rights protection based on the verb "infringe" was intended to be in the Founders' view is to rely on historical examples. What can be gleaned from their own use of this term in relation to other Bill of Rights proposals? Here are some of them.

James Madison's Usage
The Second Amendment's "the right of the people to keep and bear arms shall not be infringed" language is exactly what was proposed as the first clause of the amendment by James Madison on June 8, 1789. In addition to that "infringe" based language, Madison also included this freedom of religion related protection in his Bill of Rights proposals to Congress: “nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.” [The Origin of the Second Amendment p.654] Assuming that Madison's intention in preventing religious liberty from being “infringed” was to allow for considerable "reasonable" regulation by the federal government is illogical. In fact, it is clear that the intent of such language was to prevent any interference whatsoever by the government in such matters. The later change to “Congress shall make no laws” language buttresses this period understanding of "infringe" based protection.

Samuel Adams' Usage
Another person who used "infringe" in bill of rights proposals for the Constitution was Samuel Adams in the Massachusetts Ratifying Convention. He attempted to protect freedom of the press and religion with this proposal: “that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience”. [OSA p.260] It is unthinkable that such usage by Adams indicated an intention to allow extensive reasonable regulations of freedom of the press and religious beliefs. Instead, such language was certainly intended as the strongest of limits upon government actions, just as in Madison's case with his infringe based restrictive proposals to Congress regarding freedom of religion and the right of the people to keep and bear arms.

Congressional Amendments Committee Usage
There is other informative period Bill of Rights related use of "shall not be infringed" language often overlooked today due to gun control advocates' historical arguments diverting away from the Second Amendment's actual Bill of Rights history. The Committee of Eleven, to which Madison's proposals were submitted by Congress, accepted his original use of "infringed" relative to freedom of religion as well as his "shall not be infringed" language relative to the right of the people to keep and bear arms. The Committee also added Madison's original Second Amendment restrictive language ("shall not be infringed") to other First Amendment rights – freedom of speech - freedom of the press - the right of peaceable assembly - the right to apply for redress of grievances. All of these, including Madison's “inviolable” freedom of the press and his right of the people to speak, of which they “shall not be deprived or abridged” [OSA p.654], were re-stated by the Committee as rights that “shall not be infringed”. [OSA p.680] Once again, it does not appear that such period usage indicated the Committee members understood that religious beliefs could be subjected to extensive reasonable regulations, or that they used "shall not be infringed" with the intention that it would condone extensive and reasonable regulation of freedom of speech, freedom of the press, the right of peaceable assembly, the right to apply for redress of grievances, or the right to keep and bear arms.

Interpreting this restrictive "infringe" based language in the manner that some advocates of gun control do for Second Amendment usage removes all meaning of the terminology and completely destroys any protective intent of the provision. Such interpretations leave the intended protected rights to be regulated exactly like any other subject placed under the government's power. Such views of the language completely ignore the developmental history of the Bill of Rights, a history that is remarkably well documented because the need for a U.S. Bill of Rights was publicly and privately discussed for more than two full years prior to Congress' proposal of the U.S. Bill of Rights amendments.

Shall Not Be Infringed - Shall Make No Laws
Another interesting period fact is that the style of restrictive language ultimately used in the First Amendment – "Congress shall make no laws" - was previously found mostly in Second Amendment related proposals.

The Pennsylvania Minority supported a proposal that: “no law shall be passed for disarming the people, or any of them, unless for crimes committed, or real danger of public injury from individuals". [OSA, p.151]

The New Hampshire Ratifying Convention adopted proposals related to the subsequently adopted First and Second Amendments that stated:
"XI. Congress shall make no laws touching religion, or to infringe the rights of conscience.
XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion". [OSA, p.446]

The restrictive language of New Hampshire's amendment protecting religious freedom contains not only the very words later used as restrictive language in the First Amendment but also the very strongest of restrictions that is based on the verb "infringe". It is inconceivable that infringe was intended in New Hampshire's religious freedom amendment as intended to allow any regulation whatever.

The Strongest Possible Restrictive Language
First and Second Amendment protections were always given the very strongest possible restrictive language – no law shall be passed – shall make no law – inviolable – not be deprived or abridged – not be restrained - shall not be infringed - nor shall the right be infringed - shall make no laws touching - shall make no laws to infringe. The Second Amendment's “right of the people to keep and bear arms shall not be infringed" language was clearly not intended to allow for extensive reasonable regulation. Rather, it was intended to prevent all laws and regulations that would result in the people being deprived, abridged, restrained, narrowed, or restricted in the exercise of their fundamental right to keep and bear arms.

Root Causes of Never-ending Second Amendment Dispute - Part 3

2009-01-31T23:02:00.017-05:00

Ignored Facts, Unfounded Assertions, and the Professional Historians' Heller Amicus Brief

The English Bill of Rights was never intended to limit legislative authority, a point exhaustively discussed at the beginning of the Heller amicus brief from fifteen professional historians. The historians compared the English Bill of Rights to American state declarations of rights, arguing that the American versions were also not intended to limit legislative authority. After noting that Britain's Parliament claimed power over the colonists “in all cases whatsoever” and that Americans rejected the claim, the historians assert:

Assertion #3
“But in doing so they did not repudiate the general conception of legislative supremacy, which remained the leading principle of the new state constitutions adopted with independence, and that principle embraced a robust conception of the reach of legislative authority.” [p.9]

Fact Checking of Assertion #3
The historians would have readers of their brief believe that Americans rejected the claim of unlimited power by a British Parliament wielding its legislative supremacy and revolted only to adopted in its place a slew of new state governments in which they wanted the law making branch to possess legislative supremacy. Consistency is not a strong point of these fifteen historians, and their assertion is factually incorrect.

As in their first two erroneous assertions, these professional historians have overlooked directly conflicting information from the very person, James Madison, who not only helped develop and adopt Virginia's 1776 Declaration of Rights, but who also relied on its provisions as re-adopted by state ratifying conventions in 1788 to form the proposals for the U.S. Bill of Rights. Madison's understanding, directly at odds with the academic historians' assertion, was presented to Congress in his speech introducing the proposed U.S. Bill of Rights amendments - a source professional historians disputing the intent of a U.S. Bill of Rights provision should be aware of and rely upon as authoritative. Madison stated that: “whatever may be the form which the several States have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.” [OSA p.657]

Conclusion - Assertion #3 is erroneous
Legislative supremacy of the type exhibited by Parliament was not a leading principle of the new American constitutions as stated in the historians' Heller brief because, unlike the English Bill of Rights that was never intended to limit Parliament's legislative power, it was the great object of American declarations of rights, according to James Madison, to limit and qualify the powers of government. The fact is that every new state constitution formed between Virginia's in 1776 and New Hampshire's in 1784 had specific limits on legislative authority stated within it. Such limits not only appeared in declarations of rights, they also appeared within the frame of government in those states without bills of rights, and additional limiting provisions were found in some that contained bills of rights. [OSA pp.747-780]

In this and the previous two posts, three completely unfounded assertions found in the Heller amicus filed by fifteen professional academic historians have been identified and proven to be erroneous. Three strikes and you're out. It should be clear to any unbiased person that there is something fundamentally wrong with the professional historians' brief.

Root Causes of Never-ending Second Amendment Dispute - Part 2

2009-01-28T22:24:00.011-05:00

Ignored Facts, Unfounded Assertions, and the Professional Historians' Heller Amicus Brief

The next assertion to fact check within the professional historians' Heller amicus is in the sentence immediately following assertion #1. It is another claim regarding the state declarations of rights, about which the historians assert:

Assertion #2
“These declarations operated not as legally binding commands but rather as statements of republican principles or common law protections.” [p.10]

Fact checking of assertion #2
Statements of Founders who were responsible for writing and approving the very first American state declaration of rights directly contradict this assertion. Members of the committee assigned to draw up the 1776 Virginia Declaration of Rights, including George Mason, Edmund Randolph, and James Madison, later described the purpose of that document as intended to limit the government's power. Also, the constitutions of at least three states indicated that their declarations of rights ought not to be violated on any pretense whatsoever.

First, George Mason, author of the 1776 Virginia Declaration of Rights, stated the following during the Virginia Ratifying Convention in 1788: "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." [OSA p.436] Mason's specific talking points under discussion at that moment were sections 8 through 13 of Virginia's Declaration of Rights, which included the first state bill of rights well regulated militia language and predecessor of the Second Amendment. [FVRBA p.140]

Next, Edmund Randolph, in his Essay about revolutionary Virginia, wrote that the first purpose for the Virginia Bill of Rights was that the legislature should not in their acts violate any of those canons it contained. [FVRBA p.75]

Third, James Madison, referring to all of the American state bills of rights during his speech introducing the proposals that became the U.S. Bill of Rights into Congress, made this statement : "The people of many States have thought it necessary to raise barriers against power in all forms and departments of Government, and I am inclined to believe, if once bills of rights are established in all the States as well as the federal constitution, that although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency." [OSA p.657]

Additionally, each of the three state constitutions that made their state declarations of rights part of the constitution, as noted in the prior post, also indicated that those declarations of rights ought never to be violated on any pretense whatsoever. The relevant section of the 1776 Constitution of Pennsylvania stated: "Sect. 46. The declaration of rights is hereby declared to be part of the constitution of this commonwealth, and ought never to be violated on any pretence whatever." [OSA p.755] The virtually identical provision from North Carolina's 1776 Constitution stated: "XLIV. That the Declaration of Rights is hereby declared to be part of the Constitution of this State, and ought never to be violated, on any pretence whatsoever." [OSA p.763] The related provision from Vermont's 1777 Constitution stated: "Section XLIII. The declaration of rights is hereby declared to be a part of the Constitution of this State, and ought never to be violated, on any pretence whatsoever." [OSA p.768]

Conclusion - Assertion #2 is erroneous
The assertion in the Heller amicus from fifteen professional academic historians that the state declarations of rights were not legally binding on the state governments is directly contradicted by the above stated views of three prominent Founders, all of whom were members of the committee that drew up the first American state declaration of rights, and two of whom were later actually responsible for the development of the U.S. Bill of Rights (including the specific two clause structure and language of the Second Amendment). The historians are also contradicted by the specific provisions in the constitutions of Pennsylvania, North Carolina, and Vermont that not only made their declarations of rights part of their constitutions in order to protect them from legislative tampering, but further specified they ought never to be violated on any pretense.

That not one of the fifteen professional academic historian signers of the Heller brief was familiar with these statements from prominent Founders or the provisions of the existing state constitutions that directly contradict their assertion once again emphasizes a lack of familiarity with essential relevant historical information on their part. Of more significance, that these historians make an assertion directly contradicted in Madison's speech to Congress introducing the U.S. Bill of Rights proposals in a brief explicitly relating to the disputed history and intent of a provision it contains is entirely unacceptable from any point of view.

Both erroneous assertions #2 and #1 indicate that the claims in the Heller amicus from fifteen professional academic historians cannot be relied upon as factual because they are unfamiliar with, have misinterpreted, or have ignored relevant period evidence that is essential for understanding Second Amendment history and meaning.

Root Causes of Never-ending Second Amendment Dispute - Part 1

2009-01-25T00:56:00.008-05:00

Ignored Facts, Unfounded Assertions, and the Professional Historians' Heller Amicus Brief

The Heller amicus brief supporting Washington DC filed with the U.S. Supreme Court by fifteen professional historians was the culmination of many years of research into American history. It obviously presented the very best historical arguments from those in the field supporting the city's position. However, the historians' brief included errors of fact, ignored directly contradictory information, and strayed far afield from the actual Bill of Rights history and context of the Second Amendment, and all of this in spite of the fact that fifteen academics were involved. In this and following posts, various errors and misleading assertions in the historians' Heller amicus brief will be examined. Each erroneous or misleading statement will be numbered and fact checked against period information with the error or misleading information documented.

Regarding the eight state declarations of rights formed during the American Revolution and extant at the time the Second Amendment was developed, the historians in their Heller amicus assert:

Assertion #1
“In only two states (Pennsylvania in 1776, Massachusetts in1780) were they made part of the actual constitutions.” [pp.9-10]

Fact checking of assertion #1
There is no doubt that the two state declarations of rights specified by the historians were part of their state constitutions. What there is serious doubt about, however, and what is erroneous about the historans' assertion is that there were only two.

In the case of Pennsylvania, the Constitution of 1776 clearly stated, “Sect. 46. The declaration of rights is hereby declared to be a part of the constitution of this commonwealth” [OSA p.755] But these fifteen historians somehow missed the fact that two other states copied the above Pennsylvania Constitution language almost verbatim making their declarations of rights part of their constitutions also. North Carolina's 1776 Constitution stated, “XLIV. That the Declaration of Rights is hereby declared to be a part of the Constitution of this State” [OSA p.763] The other state to have identical language on this matter was Vermont. The Vermont Constitution of 1777 stated, “Section XLIII. The declaration of rights is hereby declared to be a part of the Constitution of this State” [OSA p.768] The fact that such obvious and easily accessed information was overlooked and an assertion made to the Supreme Court that, in effect, it did not exist does not bode well for the factual reliability of the professional historians' Heller amicus brief.

As for Massachusetts, directly after the PREAMBLE of the Massachusetts Constitution of 1780 came “PART THE FIRST”, the title of which was, “A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH OF MASSACHUSETTS”. [OSA p.770] This is obviously the first part of the constitution. Inexplicably however, not one of these fifteen professional historians noticed that New Hampshire's 1784 Constitution had exactly the same constitutional structure in this respect as that of its southern neighbor. The title of “PART I” of the New Hampshire Constitution was “THE BILL OF RIGHTS” [OSA p.775], indicating it was the first part of the constitution.

Conclusion - Assertion #1 is erroneous
The historians' assertion that only two of the eight existing Revolutionary Era state declarations of rights were part of their state constitutions was erroneous and misleading. At least five of the eight state declarations of rights were specifically, in the words of the state constitutions themselves, part of their state constitutions. An obvious error of this type from such a large assemblage of professional academic historians is unacceptable in an amicus brief filed with the U.S. Supreme Court. The nature of this error is not just an embarrassment for the historians. It brings into serious question the factual basis of the historians' Heller amicus brief supporting Washington DC's gun control laws because it indicates that these historians are not overly familiar with the relevant period sources their assertions relate to.