Sources on Original Second Amendment Meaning, History, Purpose, and Intent

Updated January 27, 2013
Based on recent Google searches, there seems to be a great interest in original information on the Second Amendment. Such searches, depending on the exact terms, lead to between 2 and 64 million results. That many links makes for a daunting task in locating reliable results actually containing original period information. For that reason, this post links to results of my Founding Era based research carried out over the last four decades. See links to my online articles and other posts here, here, and here.

I have also produced two printed books - a recent history, The Founders' View of the Right to Bear Arms: A Definitive History of the Second Amendment, and an earlier massive period document collection, The Origin of the Second Amendment: A Documentary History of the Bill of Rights in Commentaries on Liberty, Free Government, and an Armed Populace, 1787-1792. My online articles and printed history rely on the relevant period sources reprinted in The Origin of the Second Amendment for documentation.

The previous three posts in the Second Amendment History Online series have presented Federalist arms mantras, which are statements by supporters for ratification of the U.S. Constitution that tyranny was not possible under it because the people were armed. There were numerous such arms mantras, and there were also numerous Antifederalist arms mantras, which maintained that an armed populace was not guaranteed under the Constitution and, as a result, its adoption would lead to tyranny. The next few posts will present some of the Antifederalist versions.

All Ratification Era arms mantras and other relevant sources placing the Second Amendment in its proper period context of the struggle to add the Bill of Rights to the U.S. Constitution are reprinted in The Origin of the Second Amendment. It is the only complete collection of its kind relating to the Second Amendment, and that is the reason it has been extensively cited backing up the individual rights rulings in the U.S. v Emerson (2001), Parker v District of Columbia (2007), and District of Columbia v Heller (2008) decisions. It consists of relevant documents and excerpts from newspapers, letters, convention speeches, bill of rights proposals, ratifications of the Constitution, notes, and other period sources. Each document presents a literal transcript of the original, provides a citation to the source, and is presented without editorial commentary. Origin also contains an introduction intended for those entirely unfamiliar with period history.

In addition to all period arms mantras, The Origin of the Second Amendment includes all relevant sources covering other related subjects such as Bill of Rights demands, discussion, and development, militia related discussions, and the limited nature of the proposed Federal Government. There are several appendices, one containing the eight state declarations of rights extant when the Second Amendment was written. These are included because they were constantly mentioned as the source for the Federal Bill of Rights during the Ratification Era.

The Founders' View of the Right to Bear Arms is my history of American Second Amendment development. It traces every term of each clause from its author back to the earliest authors and usage in American state bills of rights. It then traces that usage back to the events that brought about such usage. Even earlier Colonial Period usage of the terms found in the Second Amendment are presented so a full understanding of American usage of the amendment's language is explained and documented. The Founders' View presents historical evidence never before examined regarding the Second Amendment predecessor context as leading Mason Triads parts.

While there are many excellent articles and books on the Second Amendment that rely on or present period sources, there is only one complete Ratification Era source, The Origin of the Second Amendment, and only one history based directly on that collection by its editor, The Founders' View ofthe Right to Bear Arms.

Hopefully, this information is what readers are searching for. Please pass links to it along to those who are in need of it.

Second Amendment History Online - Zachariah Johnson's Federalist Arms Mantra

The People are Not to be Disarmed of Their Weapons

[Zachariah Johnson was a Federalist member of the 1788 Virginia Ratifying Convention, which adopted a proposed bill of rights and list of other amendments to the Constitution after its ratification. Antifederalists, led by George Mason, had actually prepared the bill of rights and list of other amendments. Virginia Federalists managed to achieve ratification of the Constitution by agreeing to send all of the proposals on to the new Federal Congress for consideration and promising to support the bill of rights protections. Johnson's Federalist Arms Mantra was part of a speech to convention delegates on June 25, 1788. On the previous day, Patrick Henry had introduced what became the model for the U.S. Bill of Rights that contained the original two-clause Second Amendment predecessor.

    In this particular instance, the armed populace argument was deployed by Johnson to counteract fears that the Federal Government would have power to make a religious establishment. Note also, as in all period arms mantras, the people's weapons that Johnson referred to included the common single shot flintlock arms and bayonets of the period, exactly what soldiers employed by the government would be armed with.]

"The diversity of opinions and variety of sects in the United States have justly been reckoned a great security with respect to religious liberty. The difficulty of establishing a uniformity of religion in this country is immense. The extent of the country is very great. The multiplicity of sects is very great likewise. The people are not to be disarmed of their weapons. They are left in full possession of them. The government is administered by the representatives of the people voluntarily and freely chosen.

    Under these circumstances, should any one attempt to establish their own system, in prejudice of the rest, they would be universally detested and opposed, and easily frustrated. This is a principle which secures religious liberty most firmly. The government will depend on the assistance of the people in the day of distress. This is the case in all governments. It never was otherwise." [The Origin of the Second Amendment, p. 452]

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]

Second Amendment History Online - Noah Webster's Federalist Arms Mantra

 Before a Standing Army can Rule, the People must be Disarmed
Updated January 25, 2013
[Noah Webster, of later dictionary fame, was a strong Federalist who wrote an early pamphlet, An Examination Into The Leading Principles of the Federal Constitution (October 10, 1787), under the pseudonym A Citizen of America. This was published only three weeks after the Constitution was made public. Webster's purpose was to defend the proposed Constitution and argue for its ratification without amendment. His view on an armed populace is not based on any stated protection for such a concept in the Constitution. There was no constitutional assurance for the armed population that Webster so clearly described as the source of power and the check on possible government tyranny. This specific problem, the Constitution's failure to assure the people's control over the government they were being asked to ratify, was emphasized in period Antifederalist arms mantras, which will be presented in future posts of this series.]

   "But what is tyranny? Or how can a free people be deprived of their liberties? Tyranny is the exercise of some power over a man, which is not warranted by law, or necessary for the public safety. A people can never be deprived of their liberties, while they retain in their own hands, a power sufficient to any other power in the state. . . .

   Another source of power in government is a military force. But this, to be efficient, must be superior to any other force that exists among the people, or which they can command: for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in American cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive." [The Origin of the Second Amendment, p.40]

[The Origin of the Second Amendment is the documentary source for the Second Amendment History Online series. This document collection was cited over 100 times in the U.S. v Emerson decision, cited in the Parker v District of Columbia decision, as well as several times in Justice Scalia's Heller decision. The reason for the extensive citations relative to Second Amendment intent in those decisions was because Origin reprints nearly 800 pages of documents (newspaper articles, letters, broadsides, notes, convention debates, speeches, etc.) from the Ratification Era relating to the need for the Federal Bill of Rights, the necessity of an armed populace, and militia related discussion, all emphasizing the limited nature of the Federal Government's intended powers.]

Please, if you find the above information helpful, make sure to pass it along so others will know of its  existence.

FOX's Hannity Show Hits Snag with Quotes of the Founders

     What is it with Sean Hannity and the producers of his show on the Fox News Network? We know they are pro-rights, no doubt about that. Twice in recent weeks, while discussing Second Amendment infringement issues related to gun control, Sean has presented quotes of Founders that were not accurate.
     First, on the Friday evening, January 4 Hannity show, he used a quote of George Washington regarding firearms and liberty teeth that is undoubtedly bogus. Reliable historical evidence that it is actually a quote of Washington has never been found. If anyone has a verifiable source for it, please provide it.
     Then on the Tuesday, January 8 show, Sean used a George Mason quote that was inaccurate. Sean quoted Mason asking "What is the militia?" in the Virginia Ratifying Convention. It should be noted that Attorney General of the U.S. John Ashcroft used the same inaccurate quote when he adopted the individual rights interpretation of the Second Amendment as the official understanding of the Justice Department during the Bush Administration.
     Period sources indicate Mason was actually asking "Who are the militia?", and that he went on to answer his own question, "They consist now of the whole people, except a few public officers." [The Origin of the Second Amendment, p.430] This may be considered an overly picky point, but the Founders understood the militia to be the people (who, they), not an abstract entity (what).
     George Mason was, in fact, the dynamo behind the Ratification Era push for a Federal Bill of Rights and the Second Amendment. Readers can find out a lot more about George Mason's development of Second Amendment language at my post, Root Causes of Never-Ending Second Amendment Dispute - Part 20, which examines essential American history relating to Mason that is ignored in the professional historians' Heller case brief to the U.S. Supreme Court.
     Those who know me will vouch for my interest in quotes of the Founders, and my efforts to make accurate versions of them available to everyone. Of what value are inaccurate "quotes"? They can be misleading, and they tarnish the reputation of those who present them.
     Back to Hannity. If someone reading this has contact with Sean or any of the show producers, please suggest that in the future it would be beneficial if they check the accuracy of the Founders' quotes they intent to present on the show.

It's Not About Gun Control - It's About CONTROL

These are pictures of the pro-rights rally at the Iowa State Capitol in DesMoines on Saturday, January 19, 2013.

    Photo Credit: jjy
This noontime rally was just one of the Gun Appreciation Day celebrations supporting the Second Amendment that were held around the country Saturday. (Pictures taken with an IPhone)

   Photo Credit: jjy
It and many other rallies at state capitols, as well as other events around the country, were carried out Saturday in support of the Second Amendment due to recent organized efforts to infringe its constitutional protections.

   Photo Credit: jjy
If you are looking for Second Amendment information based on Founding Era sources, heed the man's sign.

   Photo Credit: jjy
This young man is displaying the basics of what you need to know about gun control and the Second Amendment.

The Purpose of the Second Amendment - What was the Original Language, Who Wrote It, and Why?

     The "well regulated militia" language of the Second Amendment, which has confused so many for so long, is relatively easy to trace back to its earliest American author and bill of rights usage. Here is why. Congress based the first clause of the Second Amendment on an exact quote taken from the 1776 Virginia Declaration of Rights. [The Origin of the Second Amendment, p.748] Virginia's Second Amendment related language was America's first in a state constitutional level document. So what exactly was the language Congress relied upon?

"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.459]

     Why was this language relied on by Congress as an amendment to the Constitution? The ratifying conventions of Virginia and North Carolina adopted proposed bills of rights quoting Virginia's earlier bill of rights language. [OSA, pp.459, 505] New York's convention included virtually identical language, which itself had been based on Virginia's language. New York described a well regulated militia as "including the body of the people capable of bearing arms". [OSA, p.481]  It is clear that these bill of rights "well regulated militia" references related to the body of the people, not to a government formed select militia like the modern National Guard as has so often been claimed by proponents of gun control.

     So who wrote this original language back in 1776? George Mason, [The Founders' View of the Right to Bear Arms, p.62]  and he used virtually the same language prior to the beginning of the Revolutionary War to describe a voluntary defensive association in Fairfax County, Virginia. It was formed so the people could protect their rights and the existing constitution from violation by government officials and the military forces raised by them. The language that the Second Amendment was directly based upon was intended to protect against unconstitutional and rights violating actions of government carried out by force.

     There is extensive historical evidence that "well regulated militia" did not refer to a government regulated or authorized militia, but rather to locally organized defensive forces. Mason's early 1775 well regulated militia references applied to self-embodying, self-organizing, self-officering, self-training, and self-arming associations of all the free men for local defense against a current danger - British government officials and forces. [FVRBA, pp.45-50] No such local defensive associations could have existed unless the men possessed and knew how to use their own arms. The historical sources indicate that government officials and forces were taking every measure possible to limit the ability of Americans for self-defense by decreasing the availability of arms and ammunition. [FVRBA, pp.36-43]

     This historical information makes the Second Amendment's language and meaning much more clear. Claims of ambiguity about the Second Amendment evaporate once the stated meaning of its terms and the historical background of their use are known. We find that what advocates of gun control have always said about the Second Amendment's intent, that it was not intended to protect individual rights, is diametrically opposed to reality and extensive period historical evidence. Individuals voluntarily associated for defense against unconstitutional and rights violating actions of force by the government in 1774 and 1775 prior to the formation of any new American governments or any hostilities of the Revolution. This activity was based upon fundamental, unalienable rights that Americans subsequently protected against government violation in their state and federal bills of rights.

     For further and much more detailed information about the Second Amendment's development and purpose, read The American Revolutionary Era Origin of the Second Amendment's Clauses, my short, documented online history.

Second Amendment Intent / Right to Keep and Bear Arms Explained

Updated January 6, 2013

Visitors looking for facts about Second Amendment history and intent can read the results of my research online in several articles and posts, which are described and linked below. The facts of American history can end the never-ending dispute over Second Amendment intent, but only if they are understood and deployed to undermine the error based belief system of gun control supporters.

First, the shortest and most detailed account of Second Amendment history and intent is found in my article, The American Revolutionary Era Origin of the Second Amendment's Clauses. As noted in the prior post, this was printed in The Journal on Firearms & Public Policy's 2011 issue. It traces the well regulated militia and right of the people to keep and bear arms language of the Second Amendment back in history to their earliest American bill of rights usage and authors. Then in goes back earlier in American history to the actual events from which such usage developed. The article amounts to an online crash course in Second Amendment history and intent.

Other online articles include four analyzing briefs supporting Washington DC in the Heller case for extensive historical errors. These demonstrate that those supporting gun control are entirely off base in understanding American history and rights. Such historical arguments were presented in briefs of fifteen professional historians (written by Stanford's Jack Rakove), the city of Chicago, a large group of civic organizations, and three professional linguists. The first analysis, of the historians' errors, Why DC's Gun Law is Unconstitutional, was published by History News Network on February 17, 2008.

Three other articles were published at the Origin of the Second Amendment website. The Windy City's Heller brief attempted to sway the Supreme Court by repeated use of the term "federalism". My article, Chicago Re-Writes U.S. Bill of Rights History, examines and documents historical errors in Chicago's brief.

An extensive founding era document section was presented as an appendix in the Heller brief filed by numerous civic organizations. The Second Amendment as Militia Law, or, Bill of Rights? What Bill of Rights?, is the article examining the off-track historical interpretation presented within it.

Historically oriented analysis of the linguists' Heller brief is found in Professional Linguists Provide Half a Loaf with No Bill of Rights Ingredients.

A common theme runs through the historical Heller briefs of gun control supporters - lack of American Bill of Rights history, context, and intent. What this means in general terms is that they are all wrong, a fact documented at this blog in extensive analyses of the Heller professional historian amici entitled, Root Causes of Never-Ending Second Amendment Dispute, which consists of 24 posts. The gun control advocate view of the Second Amendment is a house of cards - nay, a rather extensive castle of cards. Removing the foundation, which consists of factual errors, causes the whole to crumble. I strongly recommend those wanting to fully grasp the historical import of these posts read them in order starting from part 1 (linked above), because the errors of fact build upon each other. The posts are documented and very detailed (read boring), but the payoff in essential historical knowledge is priceless.

The same suggestion is offered for two other series of six blog posts, each dealing with professional historians' mistakes about the Second Amendment intent. In the Supreme Court's McDonald case, which dealt with the Fourteenth Amendment issue of whether the Second Amendment was intended to apply to state and local governments, some of the same professional historians returned to re-argue Heller related historical issues. This was probably an attempt to get one justice to change a vote. Once again, there were significant historical errors and attempts to divert away from American Bill of Rights history in the two briefs analyzed. The first series, Historians Try to Sell Brooklyn London Bridge to U.S. Supreme Court, attempts to divert to English history for understanding an American Bill of Rights provision. The second series, Historians Try to Sell Brooklyn London Benjamin Franklin Bridge to the U.S. Supreme Court, deals with Pennsylvania history. It was in Pennsylvania that "the people have a right to bear arms" language originated in American bills of rights.

Don't forget to share this post or the above links with those interested in protecting their rights.

Shall Not Be Infringed - How Did The Framers Use This Language?

Updated February 21, 2013
In current discussion about gun control,  the theme regarding Second Amendment intent seems to be that there is no intention whatever to violate Americans' rights. The government regulations and restrictions being offered, it is claimed, would not be prevented by the Second Amendment because they are "reasonable" and make good sense, thus, presumably, not a Second Amendment violation.

What exactly did the founding generation understand the restrictive "shall not be infringed" langauge regarding the right of the people to keep and bear arms in the Second Amendment to mean? Was it only a protection against complete disarmament of the people? Would extensive banning of varieties and types of arms be A-OK? Did it mean that anything gun control advocates suggest as "reasonable" the government can implement without violation?

Those interested in this subject will find my February 8, 2009 post, The Meaning of 'Shall Not Be Infringed', most helpful. It places this language in its correct Bill of Rights context during the Founding Era and examines how those involved in developing American bill of rights language actually used it.

Pass the link on to your friends.

Second Amendment Under Attack!!!

The recent tragic school shooting in Connecticut has resulted in an outpouring of emotion laden grief, numerous calls for draconian gun control laws, and agitated commentary about the Second Amendment and its intent. Those who visit this blog are most likely looking for historical information to help defend their rights. A few, on the other hand, might be looking for someone to blame for the recent horror or to cast names (in typical Piers Morgan style).

I will address some of the erroneous and misleading claims being made about the Second Amendment in future posts. Any name calling by a commenter will result in a deleted comment.

For those looking for historical information, in addition to the numerous posts of this blog, I recommend reading my recent article, The American Revolutionary Era Origin of the Second Amendment's Clauses, which appeared in the 2011 issue of The Journal on Firearms & Public Policy. This short article traces the Second Amendment's language back to its earliest American authors, usage, context, and intent, and it is fully documented.

For those wanting the Ratification Era period sources in a document collection for their own research, The Origin of the Second Amendment: A Documentary History of the Bill of Rights in Commentaries on Liberty, Free Government, and an Armed Populace, 1787 - 1792, is readily available from Amazon.com in paperback (and also available in a sewn library bound hardcover). The Origin of the Second Amendment is the main document source for the above article as well as my most recent book, The Founders' View of the Right to Bear Arms: A Definitive History of the Second Amendment. Both of my books have been extensively cited in Federal court cases (Origin in Emerson, 2001, and Parker, 2007; both in Heller, 2008).

I have spent a lifetime researching the Second Amendment. Using American historical sources, I have documented the fact that both clauses of the Second Amendment were understood by the founding generation as protecting individual rights. Neither clause related to protecting state authority over the militia because both clauses were based directly on government limiting state declaration of rights provisions. The historical facts supporting these statements are overwhelming and consistent, and they can be found in my article and the two books described above.

The knee jerk reaction of gun control advocates to maniacal shootings is likely a factor in why the problem has not been solved. Every action taken to limit arms possession, the ability to defend oneself, and to create gun free zones by law has failed to stem violence by maniacs, especially in gun free zones. Those disarmed by law cannot defend themselves, and it is not the government's job to defend individuals, nor is the government very good at it.

Public policy should not be based upon hasty action that will not solve the problem being addressed. It should instead be based upon facts, and all relevant facts should be studied. Instead of searching for underlying causes of manic behavior, the intemperate demands for immediate action to do "something" about guns drown out all inquiry or cool reflection. Action should not be based upon the politicized, ideological beliefs of those who hate guns and despise the fundamental rights of American citizens.

For those here seeking historical facts, as well as any seeking someone to blame, I suggest taking note of the information at the SSRI Stories webpage. It presents a mind-boggling collection of school shooting and other maniacal action reports that have linked perpetrators to the use of legal drugs of the Prozac/Luvox class. That this situation has existed without study for decades and has yet to be addressed, largely due to the shrieking demands for gun control after each related tragedy, speaks volumes about why the ideological solutions widely supported by the mainstream media divert all attention away from necessary study of, and changes to, what appears to be a legal drug related catastrophe of the first order.

Shortly after this latest tragedy, I happened to listen to a National Public Radio program that seemed to be set up to discuss the need for gun control. Most of the people who called in during the period I listened instead wanted to discuss the legal psychotropic drug related mania problem. Perhaps there will be some inquiry into the widespread use of this class of drugs and their relationship to manic violence sprees in the near future. This may lead to study that is thorough, relevant, and might actually help prevent the school shooting problem rather than just doing “something” about guns. The latter action is counterproductive for self defense.

Let others know about the SSRI Stories webpage. You might also let others know about my research if they are interested in historical information from an independent Second Amendment scholar.

Richard Epstein on The Libertarian Gun Fallacy

Richard Epstein's latest foray into Second Amendment interpretation was published January 31st in the Hoover Institution Journal's Defining Ideas series. He had previously praised Justice Stevens' Heller dissent as "one of his ablest opinions" in an October 17, 2011 Defining Ideas article. The new article, entitled The Libertarian Gun Fallacy, argues that the Heller and McDonald cases were wrongly decided by the Supreme Court because the Second Amendment is not a protection for individual rights, but rather is a federalism provision intended to protect the states. Prof. Epstein bases his interpretation on the "well regulated militia" clause of the amendment. He supports his view by analyzing every provision in the Constitution containing a reference to the militia except the Fifth Amendment.

My response to this article is posted at Defining Ideas. In it, I note that Epstein tore the Second Amendment out of its actual American bill of rights related historical context. This approach makes it impossible to determine what its language was intended to mean. A much better understanding of American bill of rights related history solves this problem. American history indicates that both Second Amendment clauses were intended as individual rights protections because both were based on prior restrictions on state governments found in state bills of rights. The Second Amendment's predecessor language was not understood as protecting state governments. A link was provided to my latest article, The American Revolutionary Era Origin of the Second Amendment's Clauses, which examines and documents relevant American bill of rights history.

The History of the Second Amendment's Clauses

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

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

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

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

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

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

Happy New Year!

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

 Updated February 21, 2013
   Happy Bill of Rights Day!
   My article, The American Revolutionary Era Origin of the Second Amendment's Clauses, was published in Volume 23 (2011) of the JOURNAL ON FIREARMS & PUBLIC POLICY.
   It traces and documents both clauses of the amendment back through their earliest American historical roots. The patriot actors who brought about the language and its earlier predecessors, their terminology, and its meaning to them are all examined and documented in a relatively short article.
   What The Revolutionary Era Origin of the Second Amendment's Clauses represents is a complete counter to the numerous errors and missing history foisted on the Supreme Court by Prof. Jack Rakove and fourteen other professional historians in their Heller case amicus brief. This article places the Second Amendment back into its actual bill of rights developmental context and fills in the massive related void found in the Rakove brief. The state bill of rights predecessors are re-connected to the Second Amendment in plain fashion because James Madison and Congress both relied directly on quotes of such provisions by state ratifying conventions in their desires for the two-clause Second Amendment predecessor.
   The early Revolutionary Era usage of "well regulated militia" language by George Mason in reference to local self-embodying associations of self-armed men for mutual defence against unconstitutional actions by government officials and forces is examined. It was Mason who later authored the 1776 Virginia Declaration of Rights, America's first, and Virginia's 1788 model for the U.S. Bill of Rights. The original American state bill of rights "well regulated militia" language was intended to constitutionally protect an armed population that could keep government raised forces under their control. That same language was used verbatim in Virginia's demand for the U.S. Bill of Rights and was understood as contained within the congressonal proposal that became the Second Amendment.
   A final interesting point. George Mason, Virginia's 1776 and 1788 bill of rights author, and James Madison, who took a version of Virginia's 1788 model to Congress in 1789, were both members of the 1776 committee that drew up and approved Virginia's 1776 state bill of rights prior to the Declaration of Independence. This article makes clear that Madison, present at the birth of the American state bill of rights, was under no misapprehension of Second Amendment language and purpose when he placed its "well regulated militia" clause in the middle of a large group of private rights protections as a proposed U.S. Bill of Rights for presentation to Congress in 1789.

Uneven Stevens - Uneven Epstein

Richard Epstein, in an online article, Uneven Stevens, published by the Hoover Institutions' Defining Ideas Journal, praises retired Supreme Court Justice Stevens for some of his decisions, which he describes as "landmarks in the law." According to Epstein, one of his "ablest opinions is the dissent in the gun control case, District of Columbia v. Heller".

On the contrary, Stevens simply makes the historical facts fit his preexisting beliefs in Heller. As an example, the dissent quotes part of a George Mason speech in the 1788 Virginia Ratifying Convention, but the full Mason speech directly contradicts and undermines Stevens' entire dissent. Defining Ideas published my letter following Epstein's article in which I note this historical point and the fact that the law is in a sorry state indeed if the Heller dissent is "one of the landmarks in the law."

2011 Gun Rights Policy Conference

I will be attending the Second Amendment Foundation's 2011 Gun Rights Policy Conference in Chicago this weekend. Hope to meet any of those who follow this blog if you happen to be there. If anyone has Second Amendment history related questions, feel free to say hi and ask away.

Professor Jack Rakove's Intellectual Embarrasments

Jack Rakove, professor of history at Stanford University, who was one of fifteen PhD. holding academic amici supporting Washington DC's gun control laws in the Heller case, made a most interesting comment this Fourth of July. It appeared at The Browser and included a criticism of U.S. Supreme Court Justice Scalia's decision in that case.

"I submitted a brief in the District of Columbia vs Heller case, from three years ago. That was the case in which the Court struck down a 32-year-old handgun ban as incompatible with the Second Amendment. I think there are intellectual embarrassments of the first order in Justice Scalia's opinion."

Those who have read the series Root Causes of Never-Ending Second Amendment Dispute at this blog will be much amused by the professor's claim. As documented in the 24 posts of the Root Causes series, Prof. Rakove's Heller brief brimmed with errors of historical fact and left out the most relevant information for understanding the Second Amendment's intent. It is Prof. Rakove's brief to the Supreme Court that contains "intellectual embarrassments of the first order". There were so many errors of historical fact in the Rakove brief that the historical dissent from Justice Stevens only cited it once, and that was for a point relating to the English Bill of Rights.

The very first post of this blog, which was Part 1 of the Root Causes of Never-Ending Second Amendment Dispute series, documents the first of numerous Rakove intellectual embarrassments in the Heller case.

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

Contradictions and Errors in the Pennsylvania History McDonald Amicus

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Error as Foundation for the Mother of All Ideological Divides

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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