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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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).