Showing posts with label disarming. Show all posts
Showing posts with label disarming. Show all posts

Monday, January 25, 2010

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

More Error and Omission in the Historians' McDonald Amicus Brief

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

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

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

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

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

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

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

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

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

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

Friday, January 22, 2010

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

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

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

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

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

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

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

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

Recall that the historians' brief includes this claim:

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

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

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

Monday, May 25, 2009

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

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.

Sunday, May 24, 2009

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

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.