Saturday, June 15, 2024

The Origin of the Second Amendment - Early Sources On America's Armed Civil Population, Part 2
What happened at the time of the Boston Tea Party? 

Many Americans died helping Great Britain defeat France and conquer Canada in the French and Indian War that ended in 1763. After that, Britain began treating the American colonists as if they were also conquered. Parliament imposed taxes upon Americans with no input from American legislative assemblies contrary to their rights and past practice. Well before the end of 1773, many Americans were vehemently opposed to British actions and determined to put a stop to them.

On November 29, 1773, one of Boston's selectmen wrote "twould puzzle any person to purchase a pair of p[istols] in town, as they are all bought up, with a full determination to repell force with force." Then on December 18th, he described what happened at the Tea Party two days earlier.

In the morning "a general muster was assembled" at the Old South Church numbering 5,000 to 6,000 men. A unanimous vote was taken that the tea in the three tea ships at the wharf should go out of the harbor that afternoon. Attempts were made by one ship's captain with a committee from the meeting to allow for the tea ships departure without paying the tea tax. The port officer refused. Then the committee went to another town to locate the governor, who also refused. Very late in the day when the committee returned with this news, there was considerable shouting at the Church, and the meeting broke up with more shouting and three cheers.

Immediately thereafter, about two hundred men appeared who were dressed like indians and marched two by two to the wharf, "each armed with a hatchet or axe, and a pair of pistols". By 9 o'clock, all the tea chests were broken and tossed into the harbor by these native american actors.

Note that the population of Boston in 1773 included a maximum of approximately 1,750 males 16 and older. The "muster" included considerably more men from the surrounding towns than Boston could possibly produce.

Period actions like those described above indicate why the Founders understood the body of the people to be the militia and vice versa. In the next post, a vote of Boston's freemen in a town meeting recommending that the inhabitants without arms should arm themselves in September of 1768 will be addressed.

Thursday, June 6, 2024

The Origin Of The Second Amendment - Sources On America's Armed Civil Population - Part 1
What Did "A Well Regulated Militia" Mean To The Founders?

Updated June 15, 2024

The following short general post is planned as the first of many to examine specific details that directly relate to understanding the historical reality of America's armed civil population and Founding Era period usage of terms in the Second Amendment.

Did the Founders view the Second Amendment's "well regulated militia" language as a government institution reference or as intending the people themselves? There is extensive period source evidence that it was universally understood as applying to the latter - "the body of the people". That very definition is found in five direct American bill of rights related predecessors of the Second Amendment. The final four state ratifying conventions (VA,NY,NC,RI) prior to ratification of the U.S. Bill of Rights all included exactly that language.

Virginia's ratifying convention originated the proposal, which was copied by later conventions. Virginia simply copied verbatim from its own 1776 Declaration of Rights. Both the 1776 and 1788 iterations of Virginia's "the body of the people" understanding of a well regulated militia terminology were written by George Mason, and in both conventions Patrick Henry and James Madison were involved in adopting them. Madison promised in the 1788 convention to push for adoption of Virginia's Bill of Rights proposals and some other amendments by Congress in order to achieve ratification of the U.S. Constitution by his state.

The following year, Madison was able to convince the First Congress to adopt most of Virginia's rights proposals and four of its other amendment recommendations. While Americans refer to all of the first ten amendments as the Bill of Rights, that title was not applied to the amendments by Congress. It is an American oral tradition based on their origin in state ratifying convention bills and declarations of rights.

In the next post, sources from the Boston Tea Party period will be examined regarding period terminology and America's armed civil population.

Thursday, June 9, 2022

Historical Error In Current Supreme Court Case NYSRPA vs Bruen Pro Rights Brief

Bay Colony Weapons Collectors, Inc. Brief Misstates Availability Of Documentation From The First Congress Concerning The Bill Of Rights

The specific Bay Colony brief error involves the claim that "speeches in the First Congress were not transcribed". This statement immediately precedes discussion regarding James Madison's notes for a speech introducing the U.S. Bill of Rights amendments in the House of Representatives on June 8, 1789.

On the contrary, extensive debate including speeches in the House of Representatives were transcribed and published in 1789. The Gazette of the United States, a period newspaper, published Congressional debates and proceedings in New York where the First Congress met. The Congressional Register was published later that year in New York and contained a collection of such materials transcribed by Thomas Lloyd. These type of period publications were later collected and republished in the Annals of Congress in 1834. Relevant parts were included in a two volume collection edited by Bernard Schwartz entitled, The Bill Of Rights: A Documentary History, published in 1971. Madison's full June 8th amendment proposals were also included in The Papers of James Madison Vol.12, published in 1979.

The Schwartz collection was my source for relevant June 8 excerpts with Madison's full speech published in The Origin of the Second Amendment in 1991. The Bay Colony brief cited The Origin Of The Second Amendment as its source for Madison's June 8th speech notes. The June 8 House debate document begins on the very page Madison's notes for the June 8 speech end (p. 647) beginning with Madison bringing up the subject of the amendments to the Constitution.

Having researched Constitutional Era historical sources for two decades, then edited and self published The Origin of the Second Amendment over three decades ago, a pro rights Supreme Court brief filed in the current Second Amendment related case with such a misstatement regarding the existence of period documents is of serious concern to me. The entire purpose of a collection of relevant Constitutional Era sources like The Origin Of The Second Amendment was to make all of these materials readily available to anyone who needs or wants to study them. I'm pleased the Bay Colony brief cited The Origin of the Second Amendment, and I hope more of those interested in the individual rights nature of the Second Amendment become aware of its existence and make use of the full collection. It is the only one of its kind on the subject.

The Origin of the Second Amendment has been a major help to Federal Courts in discovering and documenting Second Amendment intent. It was extensively cited in the 2001 U.S. vs Emerson decision, which was relied upon for accurate history in the 2007 Parker vs District of Columbia decision, which also cited The Origin of the Second Amendment. The Parker decision was appealed by the District of Columbia to the U.S. Supreme Court as the Heller case that year, and The Origin of the Second Amendment was extensively cited by both sides of the dispute as well as in Justice Scalia's majority Heller opinion. It was the most cited document collection in the case. The fact is that I assisted both the Second Amendment Foundation with historical help for their Emerson case brief, and also Alan Gura in the Heller case. After winning Heller, Alan Gura indicated that The Origin ofthe Second Amendment and my companion narrative history, The Founders' View of the Right to Bear Arms, were "the authoritative books on the subject" of "the Second Amendment's history".

Note that the Bay Colony brief makes excellent use of Madison's notes, and does so in an expeditious manner for the particular argument and setting. It was not the purpose of the brief to go extensively into what Madison actually did and said that day. However, the mistaken claim regarding lack of transcriptions of speeches in Congress is a type of error that should not appear in any brief before the Supreme Court, and especially so within a pro rights brief filed in a Second Amendment related case.

James Madison's speech on June 8th, 1789 introducing the Bill of Rights amendments is available for everyone to read. It includes dispositive points on Second Amendment intent that have been the subject of dispute for decades. Some of these points cannot be determined from his notes alone. What are these points? That subject will be addressed in a following post.

Monday, May 11, 2020

Who Wrote The Original Version Of The Second Amendment?

The Second Amendment Has Deep Virginia Roots

The First Congress passed the U.S. Bill of Rights amendments on to the states for ratification in 1789 because a number of state ratifying conventions desired private rights protecting restrictions on the new Federal Government. By identifying who wrote the very first Second Amendment predecessor (one combining both right to arms and well regulated militia clauses), and who improved that language later in Congress, many facts illustrating the development and intent of this most disputed constitutional provision become clear.

Three native sons of Virginia were the men most responsible for developing and/or promoting not only the Second Amendment's language, but also the other provisions of the U.S. Bill of Rights - George Mason, Patrick Henry, and James Madison. The younger of these, Madison, was most prominently involved in passage of the Bill of Rights amendments by the First Congress. All three men were delegates the previous year to the 1788 Virginia State Ratifying Convention, which produced the model for the U.S. Bill of Rights. All three were also appointed as Virginia delegates to the Philadelphia Federal Convention of 1787 that produced the proposed U.S. Constitution, but Henry never attended. In addition, these three men were members of Virginia's Revolutionary Era Convention and on the committee which produced and adopted America's first state declaration of rights and form of government over a decade earlier, prior to the Declaration of Independence. And almost two years prior to that, George Mason and Patrick Henry were intimately involved in activities relating to private arms and defense well prior to any hostilities of the American Revolution. They later protected these activities against violation by the government in Virginia's 1776 Declaration of Rights Article 13, the first of many American Mason Triads. Its leading well regulated militia declaration was the earliest such bill of rights related usage linking an armed civil population to ultimate control over government raised armed force.

James Madison's contribution was presenting the House of Representatives an improved version of Virginia's model for the U.S. Bill of Rights and pushing for its adoption. His specific original contribution was addition of restrictive language to all rights protections, including 'infringe' based restrictions on First and Second Amendment protected rights. Madison also grouped private rights protections together including both Second Amendment clauses. However, he was not the originating author of Virginia's Bill of Rights model and its Second Amendment predecessor.

The original author of The Second Amendment's two-clause version, as well as the other Bill of Rights protections, was George Mason, Antifederalist chairman of an amendments committee in Virginia's ratifying convention. Mason was assisted in convention by Patrick Henry, whose renowned rhetorical skills helped convince the assembled delegates that a U.S. Bill of Rights based directly upon Virginia's 1776 State Declaration of Rights was essential. Mason's model Bill of Rights, with its novel two-clause Second Amendment predecessor greatly influenced all following state ratifying conventions.

New York's ratifying convention altered Mason's Second Amendment predecessor a month later to make it more clear in the New York Ratification Declaration of Rights, and the following month the North Carolina Convention adopted Virginia's language verbatim along with all of Virginia's other proposals and refused to ratify until a Bill of Rights was added to the Constitution. It was these last three state ratifying conventions of 1788 that Congress understood as desiring the Virginia model Bill of Rights amendments and its Second Amendment predecessor.

A year prior to these ratifying conventions, Mason and Madison had been very active members of the Philadelphia Federal Convention. Virginia's delegates offered the assembled state delegations the 1787 Virginia Plan for their consideration, and the U.S. Constitution resulted from pursuance of that Plan. A major Ratification Era controversy over the need for a Federal Bill of Rights erupted near the end of the Convention. Mason pointed out that a Bill of Rights was desirable and could be drawn up in "a few hours" by relying on the state declarations of rights. Yet the Convention delegations, in a rush to leave town, unanimously voted down a committee to draw up a Bill of Rights as part of the Constitution. At this time, Madison considered Mason's concern for a Bill of Rights as a relatively unimportant little circumstance, but Americans ultimately agreed with Mason.

George Mason refused to sign the proposed Constitution and left the Federal Convention extremely upset. Before leaving Philadelphia, Mason discussed the need for a Federal Bill of Rights with all three men who later became Antifederalist leaders of the Pennsylvania Ratifying Convention Minority - John Smilie, Robert Whitehill, and William Findlay. As a result, the three Pennsylvanians did in in their own ratifying convention exactly what Mason did later in Virginia's - prepared and proposed a bill of rights based on their own state declaration of rights, but it was defeated on a procedural vote. Undoubtedly, the reason Mason used both a Pennsylvania style right to arms clause and his own well regulated militia language as the original Second Amendment predecessor was his contact with the Pennsylvania Bill of Rights supporting leaders. Mason continued on after leaving Philadelphia engaged in a one man information campaign for a Federal Bill of Rights and against ratification of the proposed U.S. Constitution as written.

George Mason was also the primary author of the Virginia Declaration of Rights and Form of Government in June of 1776, early in the American Revolution. This was eleven years prior to his writing the Virginia model for a Federal Bill of Rights. But Mason was not alone in this early Revolutionary Era constitutional endeavor. Both Patrick Henry and James Madison were also members of the 1776 Virginia Convention that formed America's first state constitution, and both were on the committee with Mason that developed and approved the language. Mason's original well regulated militia clause from Virginia's 1776 Declaration of Rights was copied verbatim by Mason into Virginia's 1788 model for the U.S. Bill of Rights, and its full Mason Triad context was included.

Other states followed Virginia's 1776 lead on their Revolutionary Era declarations of rights. All seven subsequent states to adopt early American declarations of rights relied upon Mason's Virginia original version as a guide. This was especially apparent in their Second Amendment related Mason Triads, which protected an armed civil population, noted danger to liberty from a standing army, and declared government raised force subordinate to the civil power.

The older two Virginians, George Mason and Patrick Henry, were also both directly involved in defensive activities of the early Revolutionary Era clearly related to the Second Amendment and its predecessor Virginia Declaration of Rights Article 13 Mason Triad protection. Almost two years before its adoption in June,1776, both men met with George Washington and other Virginia patriots at Mount Vernon in August of 1774 to discuss claims of unlimited authority by government officials and the threat of military force to compel compliance. This was well over a half year before any hostilities began. The result of that meeting was formation of all-voluntary armed defensive associations in each of the delegates' home counties. Mason helped form and lead the Fairfax Independent Company, and Henry organized and led the Hanover Volunteers. By early 1775, still before hostilities, Mason started referring to his county's voluntary defensive association as a well regulated militia. According to George Washington, many counties in Virginia had such voluntary independent companies of militia by that time.

Voluntary defensive associations were only possible because Americans, largely farmers and frontiersmen, possessed their own arms and ammunition, knew how to use them, and could join together in mutual defense, just as they were capable of individual self defense. Americans individually decided they needed to protect themselves, their rights, their communities and their existing form of government against government officials who claimed unlimited authority, violated their rights, and destroyed their established civil government utilizing armed force.

There are extensive details regarding each of the above periods of time and the commentary of Mason, Henry, Madison, and many others relating to their activities and Second Amendment developmental history. As can be seen in the above narrative, the U.S. Constitution, and even more so the U.S. Bill of Rights, are Virginia inspired documents. George Mason was THE giant of American Constitutionalism, James Madison was also such a giant, and Patrick Henry rhetorically backed up their endeavors with clear and convincing reasoning. The Second Amendment most clearly has deep, deep Virginia roots.

Tuesday, August 28, 2018

North Central Wisconsin Gun Collectors Association Show

The Fall 2018 NCWGCA Gun Show will be held at its new location in Merrill, Wisconsin on Friday and Saturday September 14 and 15, 2018. The show will be open from 3-8PM Friday and 9AM till 4PM Saturday and will be located at the Merrill Expo Building at 200 Sales Street.

I will be attending this Show and promoting my published research on Second Amendment developmental history including my massive Founding Era document collection and the more recently published definitive history. Paperback copies of TheOrigin of the Second Amendment and copies of The Founders' View ofthe Right to Bear Arms will be available for sale at the Golden Oak Books table for $30.00 per copy. Save Amazon shipping charges and pick up copies in person.

The Origin of the Second Amendment was extensively relied upon in the U.S. Vs Emerson, Parker vs District of Columbia, and District of Columbia vs Heller Federal Court decisions concluding that the Second Amendment was developed as a Bill of Rights provision intended to protect individual rights. In the Supreme Court's Heller case, my then newly published history, TheFounders' View of the Right to Bear Arms, was cited in each pro-rights historical brief filed by those supporting a historically accurate ruling.

Stop by the Golden Oak Books table at this fall's North Central Wisconsin Gun Collectors Association Show in Merrill, Wisconsin to say hello, ask questions, and obtain copies of my self-funded and self-published research, which so heavily influenced the three American Federal Courts that based their decisions on documented American historical reality. Golden Oak Books and my research library are located a little over 100 miles north of Merrill at Ontonagon in Michigan's Upper Peninsula.

Note that my web page - - has extensive links to many of my short online articles fact checking and documenting the numerous historical errors of those who support gun control and argue against an individual rights understanding of the Second Amendment. At On Second Opinion Blog, these articles include an extensive series on the errors of professional historians supporting Washington DC's gun ban in the Heller case as well as the off base historical views asserted in Justice Stevens' Heller dissent. Locate individual articles with the index at top of page. There is also a direct website link to my article in The Journal on Firearms and Public Policy, which itself is a much condensed history of the Second Amendment's development.

Hope to see you in Merrill!

Monday, April 9, 2018

See You At The Central Wisconsin Gun Collectors Association Show Next Weekend

CWGCA Gun Show In Fond Du Lac, Wisconsin April 14 and 15, 2018

     The Central Wisconsin Gun Collectors Association Spring Gun Show will be held at the Fond Du Lac County Fairgrounds on Saturday and Sunday, April 14 and 15, 2018. This is Wisconsin's largest gun show.
     I will be at the show answering questions about Second Amendment historical development and selling copies of The Origin of the Second Amendment and The Founders' View of the Right to Bear Arms. Alan Gura, winning attorney in the Supreme Court Heller individual rights decision, described these two books as "the authoritative sources on the subject". If you can attend and have thought about obtaining your own copy of the complete Constitutional Era collection of Second Amendment related sources and/or the only history based directly upon that collection and earlier documents, you can stop by and pick them up directly from the author/editor/publisher/researcher. I will be at a table in the entryway annex.
     The Origin of the Second Amendment contains a literal transcript of virtually every relevant 1787-1792 source. These include full documents or relevant excerpts of state ratifying convention debates on every period Bill of Rights related proposal, arms discussion, militia related commentary, as well as all relevant newspaper articles, pamphlets, and private letters discussing those subjects. Included are full copies of proposals for amending the U.S. Constitution, the Bill of Rights proposal to state legislatures from the First U.S. Congress, and the relevant Second Amendment language returned as ratified from state legislatures.
     Remember, knowledge is power.

Thursday, April 5, 2018

David Hardy's Latest Law Review Article

David Hardy's latest law review article, Lawyers, Historians and "Law Office History" can be downloaded here. It deals with professional historians' historical errors, largely relating to various arguments about the English Bill of Rights.

Dave's new article includes a link to my blog post, Root Causes of Never-Ending Second Amendment Dispute - Part 10, and notes that this series of posts has twenty four parts. Why so many parts on historical fact checking professional historians? Because, as Dave Hardy documents on other historical matters, they made a lot of mistakes and completely separated the Second Amendment from its actual American Bill of Rights developmental history. The first part of the Root Causes series can be found here.

I like to refer to the activities of the professional historians who provided the Supreme Court a complete historical disgrace in the Heller case as involved with History Office Law. One must always carefully fact check every assertion and citation from professional historians arguing for gun control regarding Second Amendment historical development.

Saturday, October 7, 2017

Second Amendment Original Founding Era Sources And History

The Authoritative Period Information

     There is currently a major influx of visitors to On Second Opinion Blog seeking authoritative
information on the Second Amendment. The articles published at this blog and my other writings described below are based directly upon nearly a half century of research into original relevant Founding Era sources. For easy access to the numerous articles at this blog, look at the indexes at the top of this page. The easiest way to access information and links to all of my other printed and online research is at my website, SecondAmendmentInfoDotCom.
     What follows here is a concise description of my readily available Second Amendment historical research. In addition to the many historical fact checking articles published at this blog since January of 2009, I have edited and published the only source document collection with virtually every relevant period source, The Origin Of The Second Amendment(1991, 2001), and I have written and published the only definitive history of the
Second Amendment based directly on all of the relevant documents, The Founders' View Of The Right To Bear Arms(2007). Both of these books were extensively cited to the Supreme Court in the Heller case, and they were the only books that Alan Gura, winning attorney in the Heller case, has described as "the authoritative books on the subject" of the Second Amendment's history.
     My website, in addition to information on the above printed books, links directly to a number of online sources including The American Revolutionary Era Origin Of The Second Amendment's Clauses, my Journal on Firearms and Public Policy article (2011), which is essentially a much condensed version (about 21 pages) of my definitive history, The Founders' View Of The Right To Bear Arms.  The SecondAmendmentInfo website also links to a number of my articles documenting extensive historical errors in several amicus briefs supporting gun control in the Supreme Court's Heller case. These
include  an analysis of the brief from professional linguists that ignored all Bill of Rights context; an article on Chicago's erroneous Heller brief; one on the historically off-track brief from numerous organizations including the Education Fund; and a link to my History News Network Op-Ed (Feb.2008) noting numerous historical errors in the Heller brief filed by professional historians supporting the District of Columbia's gun control laws.

     This blog commenced on January 25, 2009 with the first part of series entitled Root Causes Of Never-Ending Second Amendment Dispute documenting the incredibly large number of historical errors and omissions of essential information in that professional historians' brief. The series runs to twenty-four parts (see Fisking Index above for direct links). I also have two different series of six articles (with takeoffs of selling the Brooklyn Bridge titles) dealing with numerous errors from professional historians' briefs in the MacDonald case where they attempted to re-argue the historical issues in Heller. My analysis of Justice Stevens' Heller dissent runs to six parts currently (more on the way). And there are numerous short articles on various subjects of interest listed in the Post Index above. Among those subjects are these titles:
The Meaning Of 'Shall Not Be Infringed'
The Meaning Of "A Well Regulated Militia"
Commas And The "Original" Version Of The Second Amendment
The Mason Triad Context Of Second Amendment Development And Purpose
     By the way, if you are unfamiliar with Mason Triads, you are most likely unfamiliar with the original American bill of rights context of ALL Second Amendment predecessors preceding Congressional proposals. These include the related provisions in eight early state declarations of rights as well as those in the proposed bills of rights and related provisions voted on in seven of the state conventions called to ratify the U.S. Constitution.
     Finally, note that my document collection, The Origin Of The Second Amendment, is a large collection, a very heavy read, and is intended as a research tool. The much easier read is my history, The Founders' View Of The Right To Bear Arms. The unusual and very extensive Table of Contents in The Founders' View Of The Right To Bear Arms is in fact an extensive outline of essential relevant historical information necessary to understand the full import and meaning of the Second Amendment.

Thursday, September 28, 2017

David Hardy's New Book Is Now Shipping

David Hardy informed me today that his new book has been published and is now shipping. The title is, I'm from the Government, and I'm Here to Kill You: The Human Cost of Official Negligence.

The previous post includes my short description of his book with a link to David's book information webpage.

Here is the the link to Amazon's order page.

Wednesday, August 23, 2017

David Hardy Has A New Book Scheduled For October Publication

Available For Pre-Order Now

Long time legal field Second Amendment scholar, David T. Hardy, has a new book coming out in October (possibly earlier, as the official publication date is set for after the books are distributed to
sellers). The title is, I'm From The Government And I'm Here To Kill You. The book deals with negligence and misconduct of Federal Government employees and the lack of accountability for their harmful actions. Included among the nine chapters are three relating to notorious cases involving arms - Ruby Ridge, Waco, and Fast and Furious. David's writings are always based upon extensive and careful research.

Check out the author's web page promoting his new book.

Amazon's pre-order link with informative description is here.

Tuesday, August 15, 2017

The Meaning Of "Fisk" and "Fisking"

Updated August 24, 2017
Fisk means fact check, and fisking is the act of documenting specific statements as factually incorrect and publishing the proof, which normally consists of relevant documents directly contradicting the erroneous statement.

On Second Opinion Blog is an excellent example of fisking. It commenced on January 25, 2009 to fisk, or fact check, the Second Amendment related arguments relied upon as authoritative by supporters of gun control. The specific statements that require fisking are those of the fifteen professional historians who backed up Justice Stevens' 2008 District of Columbia vs Heller Supreme Court dissent arguing that the Second Amendment was not intended to protect individual rights.

The initial On Second Opinion article was appropriately titled, Root Causes Of Never-Ending Second Amendment Dispute Part 1, and the series ran to twenty-four fiskings. That there is any dispute today about Second Amendment history and intent is largely attributable to the fifteen mistaken academics who signed the Heller brief written by historian Jack Rakove of Stanford. Sixteen numbered errors of fact are documented in the Root Causes series along with extensive information essential for proper interpretation ignored by the historians and directly contradicting their Heller brief assertions.

At the top of this page is a link, Fisking Index Page, which provides direct access to each of the twenty-four articles in the Root Causes Of Never-Ending Second Amendment Dispute series. There are also other series listed, and one, Justice Stevens' Train Wreck Of American History, includes fisking of Justice Stevens' dissent itself. The historians' error problems carry right over into the Stevens dissent. Every relevant aspect of the historians' Heller brief and Justice Stevens' Heller dissent are based upon fallacious conflation, historical error, and misinterpretation.

The truth is out there - right here. Find out the documented facts of Second Amendment history. See if your belief system is factually founded and can withstand fisking, or if it has no relationship to reality whatsoever, like the Heller historians and Justice Stevens, and you have been brainwashed.

Monday, April 24, 2017

How Professional Historians Destroy Historians' Credibility

Fake Second Amendment History

[Updated April 26&27, 2017]
     Jonathan Gienapp, an assistant professor of history at Stanford University, recently wrote a long article urging all historians to oppose confirmation of Neil Gorsuch as an Associate Justice of the U.S. Supreme Court. What was the basis for this opposition? A disagreement between a "few historians" (including Professors Gienapp, Jack Rakove, and Saul Cornell) and originalists in the legal community regarding which of the two professions can best understand historical materials from the Founding Era. Reading Professor Gienapp's article, one is left with the distinct impression that originalists, such as former Supreme Court Justice Antonin Scalia (and now Justice Gorsuch) eschew any reliance upon history in cases involving the language and intent of the U.S. Constitution. Gienapp's view is that such originalists "have escaped history".

"How originalists have exploited their new fortifications to repel historical expertise is best captured in their reaction to the so-called historians’ amicus brief filed for the Supreme Court in conjunction with the controversial Second Amendment case from 2008, District of Columbia v. Heller... That case—which centered on a D. C. handgun ban—ultimately turned on the original meaning of the amendment. And historians reached the diametrically opposite conclusion from the one advanced by Justice Scalia in the Court’s majority opinion...."
[The above link includes my direct response to Professor Gienapp's article.]

     There are multiple historical problems with the views expressed in Professor Gienapp's article, and some of them will be addressed in this post. First is the assumption that the Heller historians not only got the Second Amendment's history right, but also backed up their conclusion with proof based on primary period sources, and took all of the relevant period sources into account in their examination of the subject. Along with that assumption comes the corollary assumption that it must be Justice Scalia and the Heller majority involved in any historical error. The second problem with the article is the assumption that only historians can accurately get at historical reality, with its corollary that everyone else must rely upon professional historians' views because of their academic credentials. A third problem is that, if these assumptions are incorrect, and they are, then reliance upon the historians' Heller brief as poster child for politicized action against a judicial nomination is historically foundationless politicization of the profession, which it is.
     Neither Justice Scalia for the majority of the Court, nor Justice Stevens in his Heller dissent, cited the professional historians' brief for American Bill of Rights history, with Stevens citing it only once about the English Bill of Rights. There are at least two reasons for lack of reliance upon it by the justices in Heller. First, there is very little actual American Bill of Rights history to be found in the historians' brief, and second, the brief contains numerous errors of fact, erroneously conflated history, and extensive irrelevant material as far as the actual historical point in the Heller dispute. Justice Stevens dissent, which largely followed right along with the historians' assertions in their brief, still had to directly contradict it twice regarding specific historical points. The historians' Heller brief was so historically unreliable that direct citation regarding American history was not possible even by its supporters in the Supreme Court's minority.
     One example of that historical unreliability is a multiple error found in just one assertion in the brief regarding how many of the eight early states with declarations of rights made them part of their state's constitution:

“In only two states (Pennsylvania in 1776, Massachusetts in 1780) were they made part of the actual constitutions.”

     This claim in the historians' Heller brief is contradicted multiple times in three of the period sources actually under discussion by the historians. Three states, North Carolina 1776, Vermont 1777, and New Hampshire 1784 copied various features of the two named states making their declarations of rights part of their constitutions. Vermont alone had three different designations to that effect within its constitution. None of the fifteen professional historian signers of the Heller brief were familiar enough with the relevant period sources to recognize their assertion was in direct conflict with historical reality, a point analyzed and documented in this post at this blog.  Is this what Professor Gienapp refers to as "historical expertise"? This intellectual embarrassment of the first order from the historians' brief is just the tip of an iceberg of such errors, and those go hand in hand with a fundamental conflation error mixing up Founding Era Second Amendment Bill of Rights predecessors with entirely unrelated militia powers amendment history, as analyzed and documented in this post.
     Reliance upon the historical accuracy of the professional historians' Heller brief is just as historically risky and illogical as reliance upon the historical accuracy of Michael Bellesiles book, Arming America, for which a Bancroft prize was awarded and later rescinded. The difference between the two situations being the Heller brief historians are not accused of veracity problems. Instead, they are clearly not overly familiar with relevant period sources, and they appear to have sought out and advanced historical claims that support a preexisting belief regarding the disputed point in the Heller case. There is no doubt that the Heller historians believe the faulty information they provided to the Supreme Court to be accurate. There is also no doubt their brief is the perfect example of History Office Law, twisted history in a legal argument from historians. The opposite, twisted history in a legal argument from lawyers is Law Office History.
     The errors, conflated history, and missing essential information of the historians' Heller brief were analyzed and documented here at On Second Opinion Blog in early 2009 in a twenty-four part series, Root Causes Of Never-Ending Second Amendment Dispute. This Blog was established specifically to publicize historically erroneous assertions by professional historians, Supreme Court justices, and various authors concerning the Second Amendment. The Fisking Index Page link at the top of this page provides direct one click access to each of the twenty-four parts of the series for those who really want to know the details of Second Amendment history and how the professional historians managed to make such a train wreck of American history from it.

     The study of history is the study of period documentation. Historians' writings about history are not history, they are historiography, writings or stories about history by historians. Confusing history and historiography is a mistake. The suggestion by Professor Gienapp that somehow Justice Scalia has "escaped history" regarding the Second Amendment in the Heller case is patently absurd. The Origin Of The Second Amendment, the only comprehensive reprint of source period documents on the subject was the most cited historical collection among the briefs to the Court, and it was cited by both sides in the dispute as well as the majority opinion from Justice Scalia. The Origin Of The Second Amendment was cited in the Circuit Court for the District of Columbia's Parker decision (2007), which was appealed to the Supreme Court as the Heller case and upheld in the Heller decision, and was also cited in the prior Fifth Circuit Court of Appeals U.S. vs Emerson decision (2001). There were over a hundred such citations in the Emerson decision, which itself was cited in the Parker decision. Thus, there is an extensive background of period historical evidence in linked Federal cases that does not appear within the Heller decision itself.
     Also, a newly published history of the Second Amendment, The Founders' View Of The Right To Bear Arms, which was based directly on the period sources reprinted in The Origin Of The Second Amendment, was cited to the Supreme Court in numerous Heller historical briefs. The Founders' View Of The Right To Bear Arms traces and documents every aspect of Second Amendment related terminology and development from Colonial Period use through the Revolutionary and Founding Eras until the final version was ratified by the requisite number of state legislatures.

     All Supreme Court justices in the Heller case had equal opportunity to examine this entire historical record, which was placed directly before them right along with the new, clear history linking the essential information into a logical whole. Most of the justices in the Heller case paid attention to that record, making certain their ruling was consistent with it. By the way, the historical source collection and history described above did not originate with professional historians, but instead with the author of this blog, an avocational historian. This information makes clear it was not the case Justice Scalia "escaped history", but rather that he escaped the faulty historiography and "historical expertise" of professional historians wishing to impose their fallacious opinions upon the Court.
     A more historically accurate view of this affair is that it was Justice Stevens and those supporting his dissenting Heller opinion who "escaped history" by relying on the Heller historians' unfounded assertions and erroneous history. Justice Stevens dissenting opinion suffers from most of the historical defects found within the historian's brief itself, with some of the historical problems made worse. It was the professional historians brief that escaped history and provided the Court with an unsupportable alternative historical outlook that was at odds with American historical reality.
     Professional historians are supposed to study all of the period sources and rely upon them to explicate historical reality. Professor Gienapp, by accepting without question the Heller case brief from Professors Rakove, Cornell, and others, at least as far as the Second Amendment is concerned, is complicit in helping to mold history to fit a certain belief that is at odds with the historical record. Most people wish to understand their country's actual past rather than be indoctrinated with historians' unfounded opinions about it. Completely failing to do what historians are supposed to do is how the profession destroys its own credibility.

Tuesday, January 31, 2017

Thank You & Blog Update

Thank You To Several Pro-Rights Bloggers

Updated October 7, 2017
Several bloggers are long overdue recognition for bringing my Second Amendment historical research to the attention of their readers during the Bill of Rights anniversary Amazon promotion, December 15 through 31, 2016.

Thank you
David Codrea - The War On Guns
David Hardy - Of Arms & The Law
Glenn Reynolds and Helen Smith - INSTAPUNDIT
A number of these bloggers' readers took advantage of the Bill of Rights Amazon promotion to obtain copies of the authoritative books on the subject of the Second Amendment's history and save money at the same time.

Blog Update
The second half of my Heller dissent analysis under the title, Justice Stevens' Train Wreck of American History, starting with Part 7 will appear in the near future (hopefully).  Also, an analysis of Michael Waldman's Second Amendment book, as well as Carl Bogus' The Hidden History of the Second Amendment are planned. The latter two have received much publicity during several prior gun control pushes from the media. Their historically defective foundations need to be examined and documented.

Note: I have an Amazon review of Waldman's book, The Second Amendment: A Biography at this link.

Thursday, December 15, 2016

The Authoritative Books On Second Amendment History Amazon Promotion

Bill Of Rights Day Anniversary Holiday Half Price Book Sale

Beginning on December 15th, the anniversary of U.S. Bill of Rights ratification, and running through the Holiday Season, The Origin of the Second Amendment document collection and The Founders' View of the Right to Bear Arms history - the authoritative books on the subject of the Second Amendment's history according to Alan Gura - will be half price at Amazon.

Alan Gura won the Supreme Court Heller case by applying a reality based litigation strategy to the Second Amendment dispute. A significant reason he was able to win the case supporting our right to keep and bear arms was because he relied on thoroughly documented facts of American history relative to the Second Amendment's development and meaning. Mr. Gura possessed the only pre-publication copy of The Founders' View of the Right to Bear Arms in late 2007, and he used it very effectively to argue the individual rights nature of the Second Amendment's protection. 

The Founders' View of the Right to Bear Arms presents and documents every historical fact regarding development of Second Amendment related bill of rights language from the early Revolutionary Era to the final amendment wording, and it places these facts into their actual historical context, which was always a limit on government. In addition to normal footnotes for earlier periods, the vast majority of citations in The Founders' View of the Right to Bear Arms are direct cites to page numbers of documents in The Origin of the Second Amendment collection, which reprints virtually all of the relevant Founding Era sources.

In the Heller case, The Origin of the Second Amendment was the most cited document collection among the historical briefs, and was cited several times in Justice Scalia's majority decision. It was also cited extensively in the prior Emerson and Parker decisions from U.S. Circuit Courts of Appeals. The Founders' View of the Right to Bear Arms was cited in every historical brief supporting individual rights in Heller, and was heavily relied upon by Alan Gura to help win the case.

For those who would like to know everything there is to know about the Second Amendment's development and possess copies of the relevant documents, the current Amazon Promotion Half Price Sale is an excellent opportunity. Do not pass this promotion up, and please let others know about it. A set of The Founders' View of the Right to Bear Arms and paperback copy of The Origin of the Second Amendment can be obtained during this holiday season for the same price as either one at the normal Amazon price. Additionally, for the first time ever, hardcover copies of The Origin of the Second Amendment are also half price for this promotion.

Now is the time to obtain copies of the authoritative books on the subject of the Second Amendment's history. Whether for yourself, as gifts for loved ones, friends, or Second Amendment interested colleagues, maybe even reasonable opponents of your views, take advantage of the current holiday season sale to obtain and give the only books to receive Alan Gura's unsolicited "the authoritative books" endorsement.

Titles are linked to Amazon pages. Bill of Rights Day Holiday Sale copies of The Founders' View of the Right to Bear Arms and paperback copies of The Origin of the Second Amendment are $15.00 each from the publisher (Golden Oak Books) during this promotional period. Promotional copies of hardcover edition The Origin of the Second Amendment are $47.50 from the publisher. Note: These books are all self-published by David E. Young (Golden Oak Books), who is the author of this Blog and a Second Amendment scholar for nearly a half century.

Monday, July 4, 2016

The Meaning Of 'A Well Regulated Militia'

A Well Regulated Militia Composed Of The Body Of The People 
Updated July 9, 2016

The Revolutionary Era language within the Second Amendment that sometimes confuses modern Americans is the well regulated militia terminology within its first clause. Americans today are so over-regulated by government that the phrase well regulated militia is automatically assumed to mean government regulated militia. This is clearly not the case with the Second Amendment and its state bill of rights predecessors with the same terminology because their context was always a limit on government, either state or Federal, and well regulated could not have meant government regulated in that context. To discover exactly what the founding generation understood a well regulated militia to mean, all that is necessary is to look at what our ancestors said and wrote regarding exactly who the militia were understood to be and in what context 'a well regulated militia' was used by them within American bills of rights.

First, how was the term "militia" used in early America? Since we are dealing with the Ratification Era, Alexander Hamilton's discussion of militia in The Federalist #29 will help illustrate common period usage. Hamilton was not discussing a Bill of Rights provision limiting government powers. He was explaining what the new Federal Government should do after Ratification of the Constitution under its delegated Article 1, Section 8 powers over the militia. Hamilton's usage was essentially the same as that used previously during the American Revolution and earlier in the Colonial Period.

The Federalist #29 provides three different definitions of the term militia that are entirely consistent. Hamilton described the militia as:
"the great body of the yeomanry and of the other classes of citizens"
"the people at large"
"the whole nation"
. [The Origin Of The Second Amendment, (hereafter OSA) pp.197-198]

In other words, Hamilton equated the people and the militia, something that was common period usage. Hamilton also provided a definition for "a well regulated militia".

"To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions as often as might be necessary, to acquire the degree of perfection which would intitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss." [OSA, p.197]

According to Hamilton, to be considered well regulated, the militia had to be effective for defense by having a certain degree of perfection in the use of arms. Well regulated was a character of the militia resulting from their preparedness, not something that could be suddenly bestowed upon the militia by passage of a law. Well regulated did not mean authorized by government.

Starting with these definitions - the militia are understood to be the people, and well regulated means the people are capable of defense - look at the first American state declaration of rights, that of Virginia from June 12, 1776 (prior to the Declaration of Independence). The introduction to Virginia's State Declaration of Rights stated:

"A declaration of rights made by the representatives of the good people of Virginia, assembled in full and free Convention; which rights do pertain to them, and their posterity, as the basis and foundation of government."  [OSA, p.747]

Section 13 of the Declaration contained the first American bill of rights predecessor of the Second Amendment and the first use of 'well regulated militia' language in such a uniquely American context:

"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, pp.747-748]

This provision and its “well-regulated militia” terminology was clearly understood as a limit on the state government. Both George Mason, who wrote the language, and Patrick Henry, who helped adopt it, stated this fact much later in the Virginia State Ratifying Convention of 1788, where Mason indicated:

"there were certain great and important rights, which the people, by their bill of rights, declared to be paramount to the power of the legislature. . . .it was necessary that the great rights of human nature should be secure from the encroachments of the legislature, . . ." [OSA, p.436]

Patrick Henry followed Mason in discussion of Virginia's Bill of Rights, indicating the general need for the well regulated militia related protections to be added in a Federal bill of rights:

"You have a bill of rights to defend you against the state government, . . . and yet you have none against Congress," [OSA, pp.437-438] 

The reason this Revolutionary Era language was brought up in Virginia's 1788 Ratifying Convention was because Mason and Henry were attempting to get the Virginia State Declaration of Rights adopted by the Convention as a proposal for a U.S. Bill of Rights. They succeeded, and that is why Virginia's Ratifying Convention adopted a Bill of Rights containing an exact quote of the state's own 1776 well regulated militia clause.

The June 27, 1788 Virginia State Ratifying Convention proposed Bill of Rights, written by Mason and introduced by Henry, began:

"That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following:-" [OSA, p.457]

Article 17 of the Virginia Ratifying Convention Bill of Rights declared:

"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;" [OSA, p.459]

Thus, Virginia's "well regulated militia" of the people language was part of the "essential and unalienable rights of the people" according to the delegates of Virginia's Ratifying Convention. And those who wrote and promoted it understood it as a limit on the state government that was now being added as a limit on the new proposed Federal Government under the U.S. Constitution. Virginia's Bill of Rights proposal and its Second Amendment language became the model for the U.S. Bill of Rights because several other state ratifying conventions essentially copied it.

North Carolina adopted all of Virginia's proposals verbatim on August 1, 1788 when it refused to ratify the Constitution until the proposals were presented to Congress and a new Federal constitutional convention. [OSA, p.505] Thus, two state ratifying convention proposals had exactly the same two-clause Second Amendment predecessor, and these included an exact quote of Virginia's 1776 language.

The New York Ratifying Convention, which had ratified somewhat earlier on July 26, 1788, rather than proposing a bill of rights for later adoption, included an entire Declaration of Rights within its Ratification Document, much of it virtually copied from the Virginia Ratifying Convention proposed Bill of Rights. New York's Second Amendment predecessor stated:

"That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state;" [emphasis original, OSA, p.481]

The New York delegates of the people ratified the U.S. Constitution "Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and the the explanations aforesaid are consistent with the said Constitution, . . ." [OSA, p.483]

Following New York's lead, Rhode Island later adopted both of the provisions quoted directly above within its own Ratification Declaration of Rights prior to ratification of the U.S. Bill of Rights provisions. [OSA, p.735]

Thus, there were four state ratifying conventions that defined “a well-regulated militia” as either “composed of” or “including” "the body of the people". The reference to "militia" in common period usage standing all by itself is a reference to the people - “the people at large”, “the whole nation” - as documented above. The “well regulated” reference simply means that the people are capable of effective defense. This means the people possess arms and know how to use them, and the government would be violating the Constitution by attempting to disarm them since this was clearly intended as a limit on government power to assure a defensively effective population. Also, this language, in conjunction with George Mason's addition of Pennsylvania style "that the people have a right to keep and bear arms" language and James Madison's restrictive “shall not be infringed” language makes the Second Amendment perfectly clear.

Going back to the original Virginia 1776 Section 13 well regulated militia Bill of Rights provision, which the above state ratifying provisions are directly related to, note that George Mason used virtually the same language in relation to an all voluntary self-embodying defensive association in Fairfax County formed in late 1774 and early 1775. This language was used because the people were forced to rely on their own personally held arms and ammunition for defense. British government officials not only failed to assure the militia were armed or trained, they did exactly the opposite, stopping all importation of arms and gunpowder and seizing any publicly stored arms and ammunition to further assure control by force over the population. Americans assured that disarming of the population could never occur under their newly formed state and Federal governments, that the people would be in control, and that is the reason for the Second Amendment and its related period state bill of rights provisions.
[See The Founders' View Of The Right To Bear Arms: A Definitive History Of The Second Amendment, pp.36,45-46,48-49, 63-65 for relevant history and early Mason Triad development]

The Second Amendment is not the ambiguous and strangely worded sentence that those disliking its provisions insist cannot be understood. To grasp its meaning one only has to look at common period usage and the full context of its inclusion in so many American bills of rights. It is a Bill of Rights provision limiting Federal Government power developed directly from state bill of rights provisions limiting state power. Interpreting it in any other way involves ignoring the period usage and historical evidence, and results in any contrary interpretation being in direct conflict with documented American historical reality.

Have a Thoughtful Independence Day!

Friday, July 1, 2016

Bill O'Reilly Is Killing The Second Amendment

Bill O'Reilly's Historical Error On The Second Amendment

This blog normally examines and documents historical errors of dissenting Supreme Court justices and professional historians who file briefs supporting gun control in Supreme Court cases such as Heller and McDonald. It does not normally address erroneous current comments on television shows relating to the Second Amendment because time is precious and one could spend their entire life trying to correct all the erroneous statements about the Second Amendment that appear regularly. However, since the Second Amendment is under continuing and heavy attack at the present time, and Bill O'Reilly has a connection to American history, this post is an exception. Bill O'Reilly's background includes teaching history, and he has an extensive series of history books, the Killing series, which hopefully are based on historical reality rather than just his personal opinions. His books are widely read and likely accepted as historically accurate, and his large number of regular viewers are apt to accept his personal views on other historical subjects as if actually based upon some documented historical evidence he has researched.

On the June 14, 2016 O'Reilly Factor, Bill had this to say regarding the Second Amendment in his Talking Points, entitled Acceptable Losses:

"the Second Amendment clearly states the government has a right to regulate militias, made up of individuals."

In reality, the Second Amendment states no such thing. Instead, it clearly states:

"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."

[Taken from Thomas Jefferson's authenticated official imprint of the amendments proposed by Congress and ratified by the states reprinted in The Founders' View Of The Right To Bear Arms, p.221]

Bill O'Reilly has the Second Amendment, a U.S Bill of Rights provision written in 1789, confused with Article 1, Section 8 powers relating to the militia written in 1787. This Bill of Rights provision was intended to limit the powers of the Federal Government, and both of its clauses were based directly on existing state declaration of rights language intended to limit state governments. The Second Amendment is like the other enumerated rights of the first eight amendments to the Constitution that were reenactments in the U.S. Bill of Rights as limits on power at the Federal level based directly on limits upon state governments taken from state bills of rights. There is nothing stated in the Second Amendment giving any government power to regulate any thing.

Mr. O'Reilly, or one of his producers, should spend a little time studying the actual historical evidence regarding Second Amendment development and purpose rather than relying solely on the host's personal opinions because the historical evidence regarding this matter is extensive, conclusive, easily available, and it directly contradicts what Bill O'Reilly believes and states on the show. A good start would be to examine The American Revolutionary Era Origin Of The Second Amendment's Clauses, a short, fully documented historical article from the 2011 Journal On Firearms And Public Policy that can be found online by clicking the above link.

Or, they could take a look at the book cited above, The Founders' View Of The Right To Bear Arms: A Definitive History Of The Second Amendment, which traces and fully documents the Second Amendment's predecessor language, authors, and historical development back through the Ratification Era into the Revolutionary Era and beyond into Colonial Period usage of terms.

Hopefully, at some time in the relatively near future, Mr. O'Reilly will correct the misinformation he broadcast on The O'Reilly Factor on June 14, 2016 regarding what he believes the Second Amendment "clearly states".

Friday, November 14, 2014

Notice: New Pages

There are now two new pages linked near the top of this page, Site Map and Post Index. These pages, along with Fisking Index Page, allow readers ease of access to the extensive historical information about the Second Amendment available in the various posts at this blog. Site Map describes each of the four site pages, and Post Index provides direct links to historically significant posts published in the past.
[Updated February 20, 2015]

Wednesday, October 29, 2014

New Fisking Index Page


A new link, Fisking Index Page, is now located at the top of this home page. It provides easy access to posts for each Second Amendment historical analysis published at On Second Opinion Blog over the last five and a half years. Readers interested in a particular series can now use the Fisking Index to go through the entire set of posts documenting the Second Amendment related historical errors in a particular analyzed work with ease. All of the analysis parts for the professional historians' Heller Supreme Court brief, the two professional historian briefs in the McDonald case, and Supreme Court Justice Stevens' Heller dissent can be directly accessed by simply opening a new tab using the list of linked parts provided in the index.

Enjoy and let others know about this readily available information.

Sunday, September 21, 2014

29th Annual Gun Rights Policy Conference Next Weekend in Chicago

The 2014 Gun Right Policy Conference, sponsored by the Second Amendment Foundation and the Citizens Committee for the Right to Keep and Bear Arms, will be held on September 26, 27 and 28 at the Hyatt Regency O'Hare Airport Hotel. Information is available at the Second Amendment Foundation's website.

I will be attending this year and hope to meet any of this blog's followers or others interested in Second Amendment history who happen to be there.

Wednesday, September 3, 2014

Notice: The Webpage Is Back Online is back online. All links at On Second Opinion Blog to information on my webpage should now be functional.
   I would like to thank Dan Joseph not only for assistance in getting the webpage back up and running quickly, but also for making it possible for my website to be readily available online.

Wednesday, August 27, 2014

Notice: The Webpage Is Down

Notice for those interested in Founding Era Second Amendment information - my webpage, is down.

Many of the documentation links at On Second Opinion Blog are to sources and articles at my webpage. For example, links to The Journal on Firearms and Public Policy article, The American Revolutionary Era Origin of the Second Amendment's Clauses, no longer work. Also links to my Heller case analyses of gun control advocates' historical arguments in friend of the court briefs no longer link.

I will be attempting to get a new host for the website soon. Until then, some of the now offline writings may appear at this blog in serialized form as blog posts.

Tuesday, June 3, 2014

The History of the Second Amendment

Second Amendment History

This most interesting subject is the focus of a program at the National Constitution Center being held tomorrow, June 4, 2014, according to a post at Alan Gura's new blog, Reality-Based Litigation. He is one of three participants in the program.

Alan was the lead attorney in the U.S. Supreme Courts' 2008 District of Columbia vs Heller case. His argument based on historical facts that the Second Amendment was understood as a protection for individual rights prevailed in that case. Reality based litigation and facts go well together.

Two books by the author of On Second Opinion Blog are considered by Alan Gura as "the authoritative books" on the history of the Second Amendment. To see which two books, click here for Alan Gura's History of the Second Amendment program announcement.

[Hat tip to David Hardy's Of Arms And The Law Blog regarding Alan Gura's new blog.]

Thursday, May 1, 2014

District of Columbia vs Heller Dissent - Part 6

Justice Stevens' Mangled Beyond Recognition American History
     Not only does Justice Stevens erroneously rely on well regulated militia language provisions as if they back up his Heller dissent argument that the Second Amendment protects state power over the militia, (see Parts 1, 2, 3, 4 and 5) he also relies on other founding era provisions that were always linked with Second Amendment predecessors. The seminal example of such linkage is Article 13 of Virginia's 1776 Declaration of Rights, the first clause of which was examined in Part 3:
"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." [The Origin of the Second Amendment, pp.748-749]
     Article 13, written by George Mason, consists of three distinct parts. The first is a Second Amendment predecessor protecting an armed populace capable of effective defense, the second part protecting against peacetime standing armies that endanger liberty, and the third part declaring government raised forces (the military) subordinate to the "civil power".
     Justice Stevens reliance on the second and third parts of Virginia's Article 13 triad of protections (Mason Triad) to support his "state militias" protecting Second Amendment intent argument is just as illogical as his reliance on its well regulated militia clause due to direct conflict with the understanding of the provisions' framers. They used the language of all three Mason Triad parts to limit the state government. As documented in Part 3, George Mason and Patrick Henry, respectively, when speaking on June 16, 1788 in the Virginia Ratifying Convention, described Article 13 of Virginia's 1776 Declaration of Rights as a provision "which the people, by their bill of rights, declared to be paramount to the power of the legislature", the intent of which was to defend "against the state government". [The Origin of the Second Amendment, pp.436, 437]
     Heller dissent usage demonstrates that Justice Stevens is oblivious to the fact that all three parts of Virginia's Mason Triad are intended as limits on state power, thus, directly conflicting with his state power protecting argument. The Heller dissent not only relies on Virginia's Article 13 Mason Triad as if it supports Justice Stevens' argument, it also relies on Mason Triads with leading well regulated militia provisions adopted by three other states, Delaware, Maryland, and New Hampshire. The full Mason Triads of all four states are quoted in footnote 5 starting on page 5 of the Heller dissent.
     Each of these subsequently adopted Mason Triads varied the language of Mason's Virginia original somewhat. They all dropped the duplicative description of the militia (the body of the people), added an exception of legislative authorization to the second part, and added "at all times" to the limitations on the state in the final subordination of the government's military forces part.
     As an example, Delaware's 1776 Mason Triad, the first after Virginia's to adopt well regulated militia language, stated:
"Sect. 18. That a well regulated militia is the proper, natural and safe defence of a free government.
Sect. 19. That standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the Legislature.
Sect. 20. That in all cases and at all times the military ought to be under strict subordination to and governed by the civil power."

[The Origin of the Second Amendment, p.752]
     Justice Stevens' reliance on these other well regulated militia protecting Mason Triads, just as Virginia's original, is entirely illogical because they were all intended and understood as limits on their state governments, not as descriptions of, guarantees to, or protections for state power.
     All of the eight early states that adopted declarations of rights also indicated they were either a part of the state constitution or a limitation on legislative power, excepting only Virginia's, the first formed. Some of the other states specified both points within their constitutions. In Virginia's case, the period framers later indicated that its declaration of rights was part of the constitution and understood as a limit on state power.

     New Hampshire's "Bill of Rights" was "Part I" of its constitution, and "The Form of Government" was "Part II". State constitutions are binding on state governments just as they are upon the people who authorize them. New Hampshire's constitution additionally specified a limitation on the state government relative to rights and privileges contained within it, a provision very similar to the Delaware provision quoted directly below. [F. N. Thorpe, Federal and State Constitutions, Vol. 6, pp.2453, 2458, 2469]
     Delaware's 1776 State Constitution, Article 25, specifically limited the legislature relative to the declaration of rights as follows:
"The common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution, and the declaration of rights, &c., agreed to by this convention."
[Thorpe, Vol. 1, pp.566-567]
     Maryland's Declaration of Rights, Article XLII, limited the legislative branch as follows:
"That this Declaration of Rights, or the Form of Government, to be established by this Convention, or any part or either of them, ought not to be altered, changed or abolished, by the Legislature of this State, but in such manner as this Convention shall prescribe and direct." [The Origin of the Second Amendment, p.761]
     The above sources indicate that all four of the Mason Triads quoted in note 5 of the Heller dissent were intended as limitations on their respective state governments, not as descriptions of state power over military matters. They were constitutional level restraints on state power that directly contradict the use made of them by Justice Stevens.
     Once again, Justice Stevens is documented using period sources as support for his Heller dissent argument that, to the contrary, directly refute his interpretation of the Second Amendment and its immediate predecessors. His constant reliance on period sources that undermine the Heller dissent argument is an intellectual embarrassment of the first order. All of the period evidence that Justice Stevens quotes in Heller, when examined carefully and compared to the understanding of the founders, disproves his argument the Second Amendment was intended to protect state militia power because he completely ignores American historical reality and the founders' period usage.
     The fact is that each of the eight state bills of rights developed during the Revolutionary Era had its own Mason Triad protecting the same three concepts as Virginia's Article 13, and all were intended to protect against violation by state government. Each included a leading Second Amendment predecessor, a limitation on peacetime standing armies that endanger liberty, and ended with a provision subordinating government raised force to the civil power.
[Mason Triads were first identified in The Founders' View of the Right to Bear Arms. They are available online in appendices of The American Revolutionary Era Origin of the Second Amendment's Clauses, which was published in the 2011 issue of The Journal on Firearms and Public Policy.]
     Mason Triads, with their leading state bill of rights Second Amendment predecessors, limited state governments at the constitutional level. They protected the people by assuring an armed population capable of defense, checked peacetime standing armies, and guaranteed any forces raised by state governments were, both in law and in reality, subordinate to the the very people who authorized the government through their state constitution.

[In the next part, the four other Revolutionary Era Mason Triads will be examined, further demonstrating Justice Stevens Heller dissent to be mangled beyond recognition American History.]