Showing posts with label militia. Show all posts
Showing posts with label militia. Show all posts

Monday, January 28, 2013

Second Amendment History Online - Federal Farmer's Antifederalist Arms Mantra

It is Essential that the Whole Body of the People Always Possess Arms
[Federal Farmer wrote two pseudonymous series of Letters to the Republican, published as two books, the first appearing in November of 1787, the second in May of 1788, the letters being consecutively numbered throughout the series. They consist of detailed discussions of problems with the proposed U.S. Constitution, such as the need for a bill of rights, the dangers from the new government's military powers, and solutions to such problems. This particular arms mantra was linked to misuse of the proposed government's militia powers resulting in the people being unable to defend themselves against government raised forces. Mention of a select militia was a response to suggestions in support of government selected corps of militia that consisted of only a small part of the able-bodied free men. The first quote is from his earlier series in Letter III. The second from the end of Letter XVIII, the final one of the series. It is Federal Farmer's closing advice on a solution to guard liberty against the numerous problems he discussed throughout the entire series.]
"It is true, the yeomanry of the country possess the lands, the weight of property, possess arms, and are too strong a body of men to be openly offended - and, therefore, it is urged, they will take care of themselves, that men who shall govern will not dare pay any disrespect to their opinions. It is easily perceived, that if they have not their proper negative upon passing laws in congress, or on the passage of laws relative to taxes and armies, they may in twenty of thirty years be by means imperceptible to them, totally deprived of that boasted weight and strength: This may be done in a great measure by congress, if disposed to do it, by modelling the militia. Should one fifth, or one eight part of the men capable of bearing arms, be made a select militia, as has been proposed, and those the young and ardent part of the community, possessed of but little or no property, and all the others put upon a plan that will render them of no importance, the former will answer all the purposes of an army, while the latter will be defenceless." [The Origin of the Second Amendment, p. 91]

"to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them" [The Origin of the Second Amendment, p.355]

Thursday, January 24, 2013

Second Amendment History Online - Tench Coxe's Federalist Arms Mantra

The Birthright of An American
[Tench Coxe wrote more than one series of articles supporting ratification of the proposed Constitution. His pseudonymous article, A Pennsylvanian III, presents one of the most detailed and explicit statements of the Federalist Arms Mantra ever penned. It appeared in the Philadelphia Pennsylvania Gazette on February 20, 1788. Once again, there was no assurance whatsoever within the proposed Constitution that the armed populace Coxe was claiming as the ultimate power under the Constitution would exist in the future. It must be remembered that it was the Antifederalists who supported amendments of the Constitution, and it was they who promoted and developed the proposals that became the U.S. Bill of Rights. The reference below to "the minority of Pennsylvania" is to the members of that state's ratifying convention who opposed the Constitution and proposed amendments including a bill of rights with Second Amendment related protection. This article was based on a copy of The Federalist #46, which dealt with the same subjects, that had been provided to the author by James Madison. A Pennsylvanian III was addressed "to the citizens of America".]
"The power of the sword, say the minority of Pennsylvania is in the hands of Congress. My friends and countrymen, it 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. . . . If the people see the least reason to apprehend a breach in the constitution by the grant of money for more than two years [for a standing army -ed.], they can elect new representatives, and they can by virtue of those military powers, which are inseparable from their own persons, suspend every operation of a Congress, which shall have thus ceased to be a lawful and constitutional power. From this circumstance, and from the citizens of the United States possessing the right of creating directly or indirectly every military officer and of granting every military resource, I do not hesitate to affirm, that the unlimited power of the sword is not in the hands of either the foederal or state governments, but, where I trust in God it will ever remain, in the hands of the people." [The Origin of the Second Amendment, pp.275-276, emphasis original]

Tuesday, February 2, 2010

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

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.]

Friday, June 19, 2009

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

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.

Thursday, May 7, 2009

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

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.