Wednesday, December 16, 2009

Bill of Rights Day Observance Second Amendment Book Sale Notice and Thank You

Note that the Bill of Rights Day Observance Second Amendment book sale is an ongoing event, which has been extended until the end of the month. It was originally planned on short notice as a ten day sale. Due to misunderstanding that it was only a one day event, I decided to extend it for another ten days until December 31st.

Further information about the book sale is located in the updated post below for December 9th.

Also, I would like to thank Cam Edwards for mentioning the Bill of Rights Day observance book sale event on his NRA news program, Cam & Company, on Tuesday (12/15/09).

Additionally, I would like to thank any other bloggers who may have mentioned the sale and who have not been specifically noted here.

Tuesday, December 15, 2009

A Thoughful Bill of Rights Day to Everyone

Updated December 16, 2009
On this 218th ratification anniversary of the U.S. Bill of Rights, the first ten amendments to our Constitution, here are some thoughts on the novel development in America of limits upon government authority, especially legislative authority.

The English Bill of Rights had already established the concept of limits upon executive authority, but not upon the legislative branch specifically or the government as a whole. It took the American Revolution to bring about declarations of rights with the intent of restrictions on legislative supremacy and the government in general. The people in seven of the original 13 states plus Vermont developed declarations of rights to their state constitutions during the contest with Great Britain. These declarations contained lists of the republican principles and unalienable, fundamental rights that our forefathers understood their new free governments to be founded upon, without which they could not long exist, and to which they were expected to conform.

After defending their newly established state governments united under the defensively oriented Articles of Confederation, a new Constitution was formed in the summer of 1787 by the Federal Convention in Philadelphia. Americans should ever be grateful that the vast majority of those present at the convention rejected George Mason's suggestion for a committee to draw up a bill of rights. Such a bill of rights would have been developed behind closed doors without extensive public discussion of its purpose and meaning. Such an action would have resulted in every aspect of every protection it contained being subject to never-ending dispute as to whether or not it was intended to limit legislative authority and to what extent.

As a result of that refusal, a major political dispute erupted during ratification over the need for a bill of rights as part of the proposed U.S. Constitution. Extensive arguments concerning that subject and the sources and purposes for such a bill of rights appeared in the newspapers, pamphlets, broadsides, and private correspondence of the period. This public dispute divided the country, producing Federalist opponents and Antifederalist proponents for a list of fundamental, inalienable rights to be constitutionally protected as part of the new form of government. The bill of rights dispute was divisive and intense, almost resulting in defeat of the proffered form of government. Early on, Federalists summarily rejected bill of rights proposals in Pennsylvania, Massachusetts, and Maryland, states where the argument was raised and they were in the majority.

In later conventions the Antifederalists prevailed in their arguments for bill of rights protections as proposed amendments to the Constitution. The acceptance of such proposals to guarantee each citizen's right to keep arms, freedom of religion, and prevent all peacetime quartering of soldiers without owner's consent in New Hampshire's convention brought about acceptance by the ninth state and a certainty that the Constitution would be carried into effect. However, this fact was unknown in the Virginia Ratifying Convention. There, in order to assure ratification by at least nine states, the Federalists, led by James Madison, agreed to pass a bill of rights and extensive list of other proposed amendments on to Congress for its consideration in order to achieve ratification. Madison promised to subsequently support the bill of rights proposals he understood as relating to individual rights, including the right of the people to keep and bear arms, and he carried out that promise after being elected to the House of Representatives in 1789.

While the intent and extent of bill of rights provisions, especially the Second Amendment, are often called into question in spite of the open public debate about the bill of rights during ratification, at least there is extensive documentation of the arguments and actions that led to development and adoption of the bill of rights provisions. It is most unfortunate that those who engage in modern discussion concerning such provisions are often completely unfamiliar with the period sources.

If the past is any guide to the future, that Americans will freely enjoy the rights protected by the U.S. Bill of Rights is seriously in doubt unless they remain eternally vigilant. In the case of the Second Amendment, the right to keep and bear arms has not only been violated and ignored, but its purpose actually denied by those interested more in control than liberty. There is little doubt that almost every provision of the Bill of Rights (with the possible exception of the Third Amendment) has either been openly violated or the intent evaded by subterfuge at one time or another.

The refuge for expectation that Americans will enjoy in the future those rights that their ancestors bled and died to pass on to them, protected in a Bill of Rights as part of the supreme law of the land, is a clear understanding of those rights, the resolve to insist that they be observed in every instance, and the ability to defend them in the last resort if all three branches of government basely neglect their primary duty as stated in the oath of office - to uphold the Constitution.

Monday, December 14, 2009

More Thank You updates

A further Thank You to both Say Uncle and Target Rich Environment for mentioning and linking to the Bill of Rights Day observation sale of my Second Amendment books as posted below.

Due to the title of my Bill of Rights Day announcement, there is some confusion that the observation event is limited to sales on December 15th, the 218th ratification anniversary for the U.S. Bill of Rights. In fact, this is an ongoing event for a limited time. Due to this confusion, the sale is going to be continued through this month until December 31, 2009.

Saturday, December 12, 2009

Thank You Updates

More pro-rights activists have mentioned and linked to On Second Opinion's announcement for the Bill of Rights Day observance sale of my Second Amendment books, which is posted below.

Long time Second Amendment activist and legal scholar, David Hardy, posted a notice concerning it at his Arms and the Law site. David is also the producer of the documentary film, In Search of The Second Amendment.

Mark Vanderberg, pro-rights activist and podcaster, posted a Gunrights tweet on twitter (something new to me) to link to the On Second Opinion Blog announcement. Note that Mark recorded a pre-Heller podcast interview of me concerning The Founders' View of the Right to Bear Arms prior to publication and also posted a synopsis of the book, both of which can be found right here.

Thank you to both David and Mark for helping to get the word out on the Bill of Rights Day observance Second Amendment book sale.

Friday, December 11, 2009

Thank You

A Thank You to both David Codrea and Thirdpower for mentioning and linking to On Second Opinion's announcement for the Bill of Rights Day observance sale of my Second Amendment books.

Thirdpower posted the notice at Days of Our Trailers.

David Codrea included the notice along with his Gun Rights Examiner announcement for his Feb. 2010 Guns Magazine review of Robert Churchill's book.

Wednesday, December 9, 2009

Bill of Rights Day Book Sale

Updated December 14, 2009

In celebration of the 218th anniversary of the U.S. Bill of Rights on December 15th 2009, Golden Oak Books announces a limited time half price sale on the historical books from Second Amendment scholar David E. Young. Paperback copies of The Origin of the Second Amendment and hardbound copies of The Founders' View of the Right to Bear Arms will be $15.00 each for a 21 day period from December 10th through the 31st, 2009. These sale prices will only be available through at the links for Golden Oak Books provided below. Bill of Rights and Second Amendment historical aficionados will be able to obtain either of Mr. Young's influential books for half of the normal $30.00 list price, or get both for the price of one. Anyone interested in reasonably priced Christmas gifts can give books that will be useful for a lifetime. Check out your local public library because it might be in immediate need of a fact filled book donation to balance out an overabundance of gun control advocate historical tripe.


The Origin of the Second Amendment
$15.00 for a limited time
The only complete period document collection, The Origin of the Second Amendment places the Second Amendment into proper context of the demands for the Federal Bill of Rights during ratification of the U.S. Constitution. In addition to bill of rights demands, relevant subjects include discussions about the militia, claims and counter-claims regarding the people being armed in the future, and every reference to the limited powers of the new Federal Government. The Origin of the Second Amendment includes literal transcripts of the amendments proposed in state ratifying conventions, as well as relevant selections from convention debates, newspaper articles, pamphlets, broadsides, and private letters. Complete source citations are provided for each historical document. Three appendices contain copies of the eight existing period state declarations of rights and similar provisions in the other state constitutions, a comparison chart for provisions of the state declarations of rights/ratifying convention bills of rights/U.S. Bill of Rights, and an analysis of support for the U.S. Constitution and the Bill of Rights based on ratifying convention votes.

The Origin of the Second Amendment was cited 38 times in the District of Columbia vs Heller case with 6 citations in Justice Scalia's Supreme Court decision. It was also cited well over 100 times in the U.S. vs Emerson decision from the Fifth Circuit Court of Appeals. These numerous citations make The Origin of the Second Amendment the most cited historical source collection on the subject in the Federal Courts.

Origin contains 800 pages of documents (890 pages total 6"X9"), is indexed, printed on acid free paper, paper bound, and includes an introduction intended for those entirely unfamiliar with ratification era history.

The Founders' View of the Right to Bear Arms
$15.00 for a limited time
Mr. Young's latest book is a definitive history of the Second Amendment providing the most complete and straightforward explanation of its development ever published. The terms and phrases of the amendment are traced from their origin in AMERICA to their inclusion in the U.S. Bill of Rights. Subjects covered in The Founders' View include the widespread ownership and use of arms by Americans in colonial times, the American understanding of militia and well regulated militia, colonial defensive associations, development of Revolutionary Era state bills of rights intended to limit legislative authority, the persons most responsible for such development, Mason Triads, arms related Federalist and Antifederalist Mantras, a detailed analysis of the ratification era bill of rights dispute and proposals, and other closely related matters. Two appendices contain Secretary of State Thomas Jefferson's Official Imprint of the ratified amendments as proposed by Congress and Mr. Young's synopsis of essential facts drawn from numerous American colonial militia laws.

The Founders' View of the Right to Bear Arms was cited extensively in the Heller case in briefs from Gun Owners of America, Academics for the Second Amendment, and Alan Gura's brief for Mr. Heller.

The Founders' View contains 288 pages (6"X9"), is indexed, printed on acid free paper, has a sewn hardcover binding, is fully documented, and relies primarily on The Origin of the Second Amendment for ratification era citation of facts.

The proper sale price will be available only through Golden Oak Books, the publisher of Mr. Young's historical research. The following links connect directly to ordering pages for the respective books:

The Origin of the Second Amendment

The Founders' View of the Right to Bear Arms

For a picture of the author holding citation tagged copies of both books at the NRA's event honoring those involved in the Heller victory, see Sebastian's Thank You post (pictures are clickable to enlarge).

Wednesday, November 25, 2009

2nd Amendment Center at Ohio State University is Gone

Updated Nov. 29, 2009

Over at The Volokh Conspiracy, Professor Randy Barnett posts that the Joyce Foundation funded Second Amendment Research Center at Ohio State University has folded. A big Aloha to OSU's 2nd Amendment Center, one of the Joyce Foundation's attempt's to buy historical creds for the proposition that the Second Amendment and gun control are mutually exclusive.

Amusing anecdote: The center's director, Saul Cornell, apparently selected the term "gun" to be used as a keyword in searching for period documents to be placed in the Center's digital archive. This was a poor choice in trying to locate documents related to the Second Amendment since it does not contain that term. One of the most intersting things about the center's digital archive of "relevant" documents was that it consisted mostly of state militia laws. Not one of the Second Amendment's state or ratifying convention bill of rights progenitors nor any period discussions concerning them appeared in it.

My research indicates that in the entire forty to fifty thousand pages of existing ratification era documents relating to the U.S. Constitution the term "gun" appeared only two or perhaps three times. Not one page of those ratification era sources appeared in the OSU's Second Amendment Research Center digital archive, not even the few sources that did contain the term "gun". Due to its extremely rare usage in such period sources, the term was not even listed in the index of The Origin of the Second Amendment.

One of those rare period uses still sticks in the mind, though: "riphael-gun".

Monday, November 2, 2009

Clayton Cramer Needs a Little Help from his Friends

Clayton Cramer, a professional programmer as well as accomplished Second Amendment historian and author, has been adversely affected by the current economy. He is out of work at the moment and looking for suitable employment.

It was Clayton who first noticed that there were major problems with the historical work of Professor Bellesiles (Emory University), who claimed that there were few firearms in America until the Civil War period. Clayton pursued this until academics became involved forcing Emory to convene a panel of experts that led to the professor's resignation amid charges of academic fraud.

If anyone might be able to help Clayton out in any way, please email him at clayton followed by the at sign followed by (He does not like spambots obtaining his address) His software engineering resume and academic VC are located at

Tuesday, September 22, 2009

On Second Opinion Update

For those who follow On Second Opinion, here is a Blog Update:

I have been taking a hiatus from blogging since June 20th in order to catch up with necessary summer work. It was unclear in advance exactly how long this situation would continue.

The plan is to start blogging again in early October. The series about the errors in the professional historians' Heller brief will be concluded then and a new shorter series on the errors in the professional linguists' Heller brief will be started.

Also, I plan to attend the Second Amendment Foundation sponsored 2009 Gun Rights Policy Conference in St. Louis on September 25, 26, and 27. I will be giving a talk about the errors in the historians' Heller brief early Saturday afternoon at the GRPC. For those interested in Second Amendment developmental history and intent, stop by my table and say hello. I hope to see you there.

Thank You.

Saturday, June 20, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 24

Ignored Facts, Unfounded Assertions, and the Historians' Heller Amicus Brief

James Madison's Second Amendment related proposal with attached conscientious objector clause as presented to Congress in June, 1789:

"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; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." [OSA, pp.654-655]

The historians make these three assertions regarding Madison's proposal:

Assertions #14, 15, and 16
"The final clause was derived from a similar provision recommended by the Maryland Convention. Id. at 181. Its presence confirms that the principal subject was the militia. That clause was also the sole subject of recorded House debate on the entire article." [pp.27-28]

Fact Checking of Assertion #14
Contrary to the historians' assertion, the Maryland Convention recommended no amendments to the Constitution. After ratification by a vote of 63 to 11, the Maryland Convention established a committee to consider possible amendments. This committee approved 13 and rejected 15 minority proposals. The conscientious objector clause was one of those rejected by the committee. The committee could not agree on a final course of action and failed to make any report of amendments. Without a report from the committee, the Convention took no action on any proposals of amendment, even those adopted by the committee. The source cited in the brief specified nothing about the provision being recommended by the Maryland Convention and indicated only that it was a minority proposal. [See The Origin of the Second Amendment, pp.356-361, for details from the Maryland minority about their amendment proposals.]

The Second Amendment clauses in Madison's proposal were clearly taken from the 17th provision in the Virginia Ratifying Convention's proposed Bill of Rights. The 19th provision of that same Bill of Rights was a conscientious objector clause. [FVRBA, p.192] To claim that Madison specifically based his proposal on what was actually a committee rejected proposition never adopted by the Maryland Convention, which recommended no amendments, while ignoring the proposal on the same subject in the Bill of Rights he promised to support and that he actually voted for in order to achieve ratification by Virginia is inane. One has to wonder whether the historians are just not very familiar with ratification era Bill of Rights sources or are simply trying to divert attention again to avoid mentioning that Madison's Second Amendment predecessor and its attached conscientious objector clause both came from Virginia's proposed Bill of Rights, which they have never mentioned the existence of.

Fact Checking of Assertion #15
In the historians' use of the term "militia," government authorization and control are a given, even in bill of rights provisions. Thus, their statement that the conscientious objector clause language Madison added to the Second Amendment clauses "confirms that the principal subject was the militia" completely ignores the purpose for bill of rights provisions - to protect specific rights against government abuse. Also, the term "militia" is not even found in Madison's conscientious objector clause. His objector clause was clearly intended as protection for individuals with religious convictions as an exception from government military power. The Second Amendment clauses were intended as protections for rights that were exceptions to government powers. All of the proposed protections later adopted in the first eight amendments, which were state bill of rights derivatives, protected rights against abuse of the powers given to government. The historians' implication of intended government military control over any of the protections Madison grouped together in this proposal are misplaced because neither the Second Amendment clauses nor the conscientious objector clause were intended to give any level of government power over the militia. Madison treated them only as protections for private rights against government power, and that is exactly how his contemporaries understood them also.

Fact Checking of Assertion #16
The final assertion that the conscientious objector clause was "the sole subject of recorded House debate on the entire article" is a fallacious argument that implies discussion about the objector clause can be taken as applying to the Second Amendment predecessor clauses. The objector clause was later deleted by the Senate after it had engendered numerous and contentious arguments in the House. And contrary to the historians assertion, there were statements made in the House that clearly related to the Second Amendment predecessor. Congressman Scott (PA) indicated that the conscientious objector clause would force the government to rely on a standing army, and that such reliance would eventually lead to violation of "another article" in the Constitution that specifically protected the people's "right of keeping arms." [FVRBA, p.194, OSA, p.703]

Congressman Benson (NY) wanted the conscientious objector clause deleted. He stated:
"It is extremely injudicious to intermix matters of doubt [the objector clause] with fundamentals." [OSA, p.697]
Obviously, he considered the Second Amendment predecessor among the fundamentals.

Conclusion - Assertions #14, 15, and 16 are all Erroneous
Contrary to the historians' assertions:

#14 - Madison could not have derived language for a conscientious objector clause from an amendment recommended by the Maryland Convention because that convention did not recommend any amendments to the Constitution, and a proposed conscientious objector clause was rejected in a committee.

#15 - Madison's conscientious objector clause tacked on to his Second Amendment predecessor did not confirm that the principal subject of either was the militia rather than protection of individual rights. It did not even mention the militia and was clearly a protection for private rights.

#16 - Discussion concerning the conscientious objector clause was not "the sole subject of recorded House debate on the entire article" claimed by the historians in their brief as demonstrated by Congressman Scott's comments on the right of the people to keep arms.

These errors of fact, taken along with a number previously addressed and documented, indicate that none of the signatories to the professional academic historians' Heller amicus brief are overly familiar with period Bill of Rights developmental sources. The cumulative effect of all these erroneous statements is to demonstrate that any statement in the brief regarding Second Amendment intent is unreliable and likely to be completely erroneous because it is founded on numerous errors of fact.

Friday, June 19, 2009

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

Diversionary Arguments Abound in the Historians' Heller Amicus Brief

Completely ignoring the restrictive clause of the Second Amendment protecting "the right of the people to keep and bear arms" against infringement, the historians had this to say about Madison's version taken to Congress:

Assertion #13
"Taking the Virginia and New York recommendations as his model, Madison again made the militia the urgent question to confront." [p.25]

Fact Checking of Assertion #13
On the contrary, there was no reason for Madison to deal with militia powers that were already established in the Constitution exactly as the Federalists wanted them. As examined in the previous two posts, what Madison had every reason to do was satisfy the overwhelming Antifederalist demands for adding a bill of rights to the Constitution, the protections of which they took from those already found in the existing state bills of rights. The ratifying convention related proposals for a bill of rights invariably included protection for the right to keep arms. [OSA, pp.151, 260, 446, 459, 481, 505, 735] In the model Bill of Rights developed by George Mason, author of the 1776 Virginia Declaration of Rights, he combined his own original well regulated militia clause with protection for the right to keep and bear arms. [OSA, p.459] Both Mason and Madison understood the predecessor state bill of rights provisions as limits on the state legislatures, and that these same limits were now being placed in a federal bill of rights to protect the same rights against federal abuse of power.

What both the Second Amendment and James Madison's version were intended to do was to assure that "the right of the people to keep and bear arms shall not be infringed." This Madison restrictive language is exactly the same in both provisions. [OSA, pp.654, 716] It is also the language that the historians have consistently bent over backwards to ignore and divert attention away from whenever feasible throughout their brief. Readers are assured that the militia is what "Madison again made" the "urgent question to confront" while the right of the people to keep and bear arms is completely ignored once again in the brief. Where are the period historical sources indicating that Madison considered making the militia powers an urgent question for Congress to confront in relation to his Bill of Rights proposals? There is a reason such sources have not been cited in the brief, because they do not exist. If, as the historians assert, the question Madison was pushing as an amendment to Congress was the militia and it was "urgent", why didn't Madison even mention it in his speech to that body?

The historians presented a page-long straw man argument about what the various points in Madison's notes for his amendments speech to Congress meant. Attempting to divert all attention to the militia clause, they then emphasized that Madison "did not discuss the right to bear arms" in his speech. True, but he also did not discuss freedom of speech, freedom of assembly, the right to petition, the right to counsel, protection against cruel and unusual punishments, and a very great number of other specific rights eventually protected in the U.S. Bill of Rights. Most of the rights he did "discuss," as the historians describe it, were simply mentioned, not discussed. Readers are informed that Madison wanted provisions for freedom of religion, the press, and criminal jury trials as protections against the states, also mentioned in his speech. But where is the "urgent" militia question mentioned in his speech or his notes? Apparently it is not as urgent as the historians purpose of diverting attention away from the right to keep and bear arms clause language.

All of these Madison notes and Congressional speech arguments are used by the historians to divert attention away from much more relevant and important information. In addition to guiding readers away from consideration of the restrictive right to keep and bear arms clause, these arguments divert attention away from the fact Madison stated that the American state bills of rights were intended to limit legislative power. This is a view that directly contradicts the historians' claim upon which this entire brief is founded. Madison stated in his speech to Congress that American bills of rights were intended "to raise barriers to power in all forms and departments of Government." This concept was repeated more than once and was a major point of Madison's Congressional speech introducing his Bill of Rights amendments. The historians are forced to ignore Madison's stated views in order to pursue their confused arguments that are founded on an accumulation of errors about Second Amendment intent. [See parts 1, 2, and 3 of this series for the historians' earliest erroneous statements regarding the intent of the state bills of rights, which contain the Second Amendment's predecessor language.]

Conclusion - Assertion #13 is Erroneous
The historians' assertion that the militia was what Madison considered as an "urgent question to confront" is without historical foundation and is used for entirely diversionary purposes in their brief. Madison never mentioned this "urgent" need for Congress to confront militia powers, and the period evidence clearly indicates, as shown in the previous post, that his concern was private rights in the case of all of the predecessors of the first eight amendments.

Root Causes of Never-ending Second Amendment Dispute - Part 22

More Error Based Confusion in the Historians Heller Amicus Brief

The historians claim that:

Assertion #12
"In drafting the amendments that evolved into the Bill of Rights, James Madison had no reason to place a private right to firearms on his agenda." [p.25]

Fact Checking of Assertion #12
The historians' claim that Madison was not intent on a Second Amendment predecessor relating to "a private right to firearms" completely ignores relevant period sources on Bill of Rights development. The Antifederalists who prepared Second Amendment predecessor language for a new federal bill of rights understood that it would protect the specified rights against the new government in exactly the same way that the state bill of rights predecessors it was based upon protected the same rights against abuse by the state governments, and Madison also understood the proposals this way (as examined in a number of prior parts of this series).

In effect, the historians are arguing that Madison did not have a clue about what he was doing with his own Second Amendment predecessor, although they do not openly state this. Instead, they do the equivalent by completely ignoring every piece of historical evidence about his efforts to organize, group related proposals, and insert these groups of related amendments into the Constitution. They also ignore the period comments by contemporaries indicating how they understood Madison's proposal. He did not intend to add a list of amendments at the end of the Constitution as ultimately occurred. Instead, Madison intended to insert amendments directly into the document at locations where related material was already located. Which provisions did Madison group the Second Amendment with and where did he plan to put it in the Constitution? Was it grouped and placed along with the Tenth Amendment that the historians have directly related its intent to? No. Was it to be placed among the militia powers that the historians have insisted all along it was related to? No.

Madison grouped the Second Amendment predecessor among a large collection of private rights protections. He wanted all of these inserted into the Constitution directly after clauses 2 and 3 of Article I, Section 9. These are the only provisions in the U.S. Constitution that protect specific private rights against violation by the new federal government. Exactly which rights did he group his Second Amendment related language with? - First, Third, Fourth, Fifth, Sixth, and Eight Amendment predecessors, private rights protecting provisions all. [OSA, pp.654-656]

Based on Madison's own actions, it is clear that the historians' assertion is completely off base. Further evidence of Madison's private rights understanding is found in the fact that contemporaries who commented on this proposal understood it just as he did - as protection for private arms rights.

Fisher Ames, a Massachusetts member of the House wrote this about Madison's proposals:

"The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people. Freedom of the press, too." [OSA, p.668]

Tench Coxe's article explaining the purpose for every one of Madison's proposals treated the Second Amendment predecessor as assuring that "the people are confirmed by the next article in their right to keep and bear their private arms." For what purposes? To prevent tyranny by the government itself or by government raised military forces. [OSA, p.671]

Conclusion - Assertion #12 is Erroneous
The period evidence directly contradicts the historians on this matter. Madison had every reason to pursue a Bill of Rights provision protecting the private right to keep and bear of arms. Madison's actions regarding the Second Amendment are no different than those relating to the other private rights protections in the first eight amendments.

Readers of the professional historians' Heller amicus brief have two choices. They can choose to ignore the period evidence indicating the Second Amendment was intended to protect private rights, just as the historians have done. The alternative is to give the Founders a little credit for understanding exactly what they were doing and saying exactly what they meant by recognizing that the historians have founded their brief on an accumulation of errors that undermine every claim they make about the intent of the Second Amendment and its predecessors.

Thursday, June 18, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 21

Error Based Confusion Reigns In Historians' Heller Amicus Brief

Professor Rakove's brief presented historical material in proper
chronological order with one exception. That exception was
presentations of subsequently adopted right to keep arms proposals
from Virginia and New York that were followed in the brief by
discussion of three earlier proposals protecting the same right. (See
parts 14, 15, and 16 of this series where the Pennsylvania minority,
Massachusetts minority, and New Hampshire Convention proposals
protecting the keeping of arms are examined in proper chronological

This relocation of discussion between the Virginia and Madison's
arms proposals about earlier protections for the right to keep arms
serves two purposes in the brief. Grouping the undeniably private
right protecting earlier proposals together at this point and
distinguishing them from the Virginia/New York proposals, which
combined the right to keep arms with a well regulated militia
reference, helps deemphasize the included right to keep arms
protection while advancing the militia powers only related view of
the historians. A second reason for using the earlier protections as
transition material separating the Virginia proposal from Madison's
version that was based directly upon it is to divert attention away
from the complete inconsistency between Madison's actual language
and the "reserved power of the states" argument that the historians
insist on reading into it.

This is James Madison's Second Amendment predecessor:

“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, p.654]

Here is one of the historians' interesting claims about Madison and
his proposal's intent:

Assertion #11
"But as the eventual Tenth Amendment demonstrates, Madison also
intended to rebut Anti-federalist charges of "consolidation" by
affirming the reserved powers of the states and the people, in a
manner akin to the Second Amendment." [p.25]

Fact Checking of Assertion #11
There is more than one factual historical problem buried within this
assertion. First, Madison's Second Amendment predecessor did not
even mention the "states" or "powers". Thus, it is quite clear that
Madison was not using his version of the Second Amendment
with any intention of protecting "reserved powers of the states"
relating to the militia.

Second, James Madison was a Federalist leader and one of the
Framers most responsible for taking powers away from the states
and giving paramount authority over them to a new federal
government in the U.S. Constitution. The historians' bold implication
that somehow Madison had changed his mind and for some strange
reason now intended to assure "reserved powers of the states"
relating to arming the militia is nothing short of preposterous.
What is most interesting is how the historians attribute Madison's
intent to Congressional Second Amendment language not found
anywhere in Madison's actual proposal. He changed Virginia's
"free state" reference to "free country" because his version was
intended to protect against the country's new government while
the language it was taken directly from originally protected against
Virginia's new state government.

The attempt to tie the Tenth Amendment to the Second Amendment
in the brief is without historical foundation because the two
amendments came from such completely different sources. The
Tenth Amendment predecessor was included in Virginia's list of
"other" amendments specifically because it was not developed from
the existing state bills of rights protections. It related to the division
of powers between the federal and state governments and the
people. It did not relate to any specific rights. The contrary was
true for Madison's Second Amendment predecessor. It and the
other protections later incorporated into the first eight
amendments were all included in a “bill of rights” that was
developed from state bill of rights provisions that Madison
understood as protecting rights of the people against abuse by
state governments.

The Second Amendment's well regulated militia reference was, for
example, developed directly from the 1776 Virginia Declaration of
Rights language because that was the verbatim source for the 1788
Virginia Ratifying Convention's proposed Bill of Rights clause.
Madison promised to support those Bill of Rights provisions in
order to achieve ratification of the U.S. Constitution by Virginia.
It was not the historians' proffered militia powers dispute that
brought about the Second Amendment. Instead, it was clearly the
Bill of Rights dispute that resulted in addition, not only of the Second
Amendment, but of the other first eight amendments to the
Constitution as well. [See OSA pp.457-462 for Virginia's proposed
bill of rights and list of other amendments.]

The powers reserved to the states in the Tenth Amendment include
those that are, specifically, "not delegated to the United States by
the Constitution". But power to provide for arming the militia was
delegated to the United States by the Constitution. Thus, if the Tenth
Amendment is anything like the Second Amendment as the historians
claim, neither amendment protects "reserved powers of the states"
over arming the militia because it is not a reserved power of the
states, and there is no period evidence that Madison intended to
make it one.

The Constitution itself does reserve certain militia powers to the
states - specifically officering and training of the militia. The Second
Amendment has nothing more to do with these actual "reserved
powers of the states" over the militia than it does with the powers
not reserved to the states by the Tenth Amendment, such as
arming the militia. It is also clear that the Federalists, who had
super-majorities in both houses of Congress had no reason
whatsoever to alter any of the Article I, Section 8 powers they had
previously partitioned between the federal and state governments
just as they wanted them.

Conclusion - Assertion #11 is Erroneous
Madison had no intention of protecting "reserved powers of the
states" in his Second Amendment predecessor because no such
terminology is found in his proposal. Also, there is nothing similar
about the Second and Tenth Amendments. Their sources and
purposes are separate and distinct. The Second relates to a specific
right that was developed from limitations on state authority
found in the existing state bills of rights, just like the other
provisions in the first eight amendments. The Tenth Amendment
relates to proper construction of the division of powers between
the state and federal governments and the people who gave power
to both. The historians' argument about "reserved powers of the
states" being a purpose of the Second Amendment is just another
clever manifestation of the collective rights argument, which
apparently has a thousand lives and emanations in the hands of gun
control supporters.

Monday, May 25, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 20

Professional Academic Historians' Heller Amicus Brief a Disgrace

A George Mason Retrospective
Updated April 5, 2013
George Mason is mentioned only once in the entire Rakove historians' Heller amicus brief, and then only for a misleading argument suggesting that the Second Amendment predecessor was intended to guarantee authority to the state governments over arming the militia (see part 18, below).

The historians' brief, ostensibly about the history of the Second Amendment, a U.S. Bill of Rights provision, fails to mention any of the relevant and essential facts that link George Mason to development of the U.S. Bill of Rights predecessors. He was the single person most responsible for demanding a federal bill of rights based on the state bills of rights. The first such demand occurred within the Federal Convention and came directly from Mason. The historians completely ignored this milestone in development of the U.S. Bill of Rights in order to emphasize their argument about development of the Constitution's militia powers as the source of a Bill of Rights provision instead. Amazingly, the historians even fail to mention that it was Mason who first brought up the subject of regulating the militia in the Federal Convention. Mason was a major player in development of the Constitution in Philadelphia.

In his Objections to the Constitution, which was published shortly after the Constitution was made public, Mason made clear the bill of rights concern of those opposing ratification. The new Constitution gave power to the federal government that specifically made laws of Congress superior, not only to the laws passed by the states, but also to the state constitutions. During the Revolution, Americans had constitutionally protected their rights against misconstruction and abuse of power by the new state government within the new state constitutions, and most specifically in declarations or bills of rights.

Thus, it was very clear to George Mason that a federal bill of rights providing the same protections found in the state bills of rights was necessary in the new U.S. Constitution. Without such a bill of rights, there was no security for liberty and the continued exercise of their constitutionally protected rights by the people of the United States. It was protection of these very rights that had largely influenced Americans to revolt against the extravagant British claims of power and to establish new state governments under written constitutions with limiting bills of rights. As subsequent events made clear, most Americans were not willing to adopt a new form of government without including these protections in a constitutional level bill of rights.

Mason was notorious for his refusal to sign the new Constitution due to the lack of a bill of rights(there were only three non-signers). Before leaving Philadelphia, Mason met with and discussed his concerns about lack of a bill of rights in the new Constitution with all of the men who later became leaders of the Pennsylvania Minority, William Findlay, John Smilie, and Robert Whitehill. It was these men who argued for a bill of rights and other amendments in Pennsylvania's ratifying convention, and Whitehill who proposed virtually a complete Bill of Rights for the Constitution based on the Pennsylvania Declaration of Rights. John Smilie mentioned during debate in the Pennsylvania Ratifying Convention that he had discussed the Virginia Bill of Rights with George Mason.

Later, Mason gave a memorable speech on returning to Virginia from the Federal Convention. He indicated that he would have rather cut off his hand than sign the Constitution because it did not protect the rights of the people - strong words from a giant of American constitutionalism.

The model Bill of Rights adopted by the Virginia and North Carolina ratifying conventions was written by George Mason, who was chairman of an Antifederalist amendments committee in Virginia's convention. Shortly after its formation, and well before it was introduced in Virginia's convention, Mason sent his Bill of Rights on to New York Antifederalists. They used it as the basis of the New York Ratification Declaration of Rights. It was Mason's letter sent with the complete model Bill of Rights to New York that definitively proves the Second Amendment predecessor could not have been intended as a militia powers amendment because the committee had not yet considered any amendments on that subject.

One would think that at least some bits or pieces of this most relevant information for understanding the Second Amendment's development might have made its way into the historians' Heller brief considering that it was prepared by a large group of professional academic historians, but that is not the case. The historians, on the contrary, seem to have actually gone out of their way to separate all relevant Bill of Rights related information linking the Second Amendment to Bill of Rights development in order to make their militia powers only related argument seem the more plausible. As a result, Mason in general is out and only militia references are in. That their argument is internally inconsistent, reliant on numerous erroneous statements, and is directly contradicted by a veritable sea of period sources is well documented in prior posts of this series.

George Mason is The Man
Yet, there is even more and equally relevant information linking George Mason to development of the Second Amendment's structure, language, sources, and meaning. Mason is the man who wrote the first American state bill of rights, that of Virginia in 1776. He was the first to use a well regulated militia reference in a state bill of rights as he developed it for the lead clause of the original Mason Triad, a power limiting structure later adopted in every state bill of rights formed before the U.S. Bill of Rights. Mason Triads related to establishment of civil government and civil control of the military. In other words, they related to protection of an armed civil population.

Tracing back Mason's usage of well regulated militia language, something one would expect of any good historian, it becomes clear that the well regulated militia reference is not to government authorized forces, but rather to self-embodying defensive associations of civilians that were only possible because the people possessed and knew how to use their own arms. Mason was a very early community organizer of Fairfax county's able-bodied free men. He urged them to form companies, elect officers, and train with their own arms as an effective defensive force against government tyranny, and later referred directly to this association as a well regulated militia, simply meaning an effective militia.

These most relevant facts about George Mason's personal involvement in over a decade of early American Second Amendment related Bill of Rights development directly contradict everything that the professional historians' brief attempts to establish using only bare assertions and the academic credentials of the signatories as collateral. It is to be hoped that many more of those interested in the Second Amendment will become more familiar with the overwhelming shortcomings of the historians' brief. In this way, those who have relied upon it may see the light, and the damage it has caused in continuing the completely unnecessary and polarizing dispute about Second Amendment intent can be properly buried in the ocean of American historical facts.

[The short guide to the most relevant parts of that ocean of historical facts can be found in: The Founders' View of the Right to Bear Arms]

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

Ignored Facts, Unfounded Assertions, and the Rakove Professional Historians' Heller Amicus Brief

Returning to the George Mason quote in the professional historians' Heller brief:

"George Mason similarly imagined how the militia might be disarmed: not by the federal government confiscating weapons, but rather, “Under various pretences, Congress may neglect to provide for arming and disciplining the militia, and the State Governments cannot do it, for Congress has an exclusive right to arm them.”"[p.20]

One paragraph later, the historians assert:

Assertion #10
"Text and context both establish that the dominant issue throughout the period of ratification was the future status and condition of the militia, not the private rights of individuals. Even when Anti-Federalists spoke of the militia being disarmed, their expressed concern was not the specter of federal confiscation or prohibition of private weapons, but rather that the national government might neglect to provide arms." [p.21]

Fact Checking Assertion #10
Other Antifederalists in addition to Mason made disarming arguments related to future destruction of the militia by federal failure to arm them, which would result in the necessity of a federal standing army for defense. However, directly contrary to the historian's claim, Antifederalists also used the term disarm in the sense of federal confiscation or prohibition of private weapons. For example, an Antifederalist writing under the pseudonym Aristocrotis stated the following in a pamphlet entitled The Government of Nature Delineated:

"The second class or inactive militia, comprehends all the rest of the peasants; viz. the farmers, mechanics, labourers, etc, which good policy will prompt government to disarm." [The Origin of the Second Amendment, p.331]

Aristocrotis' statement can only be interpreted as relating to taking private arms away from all the rest of the farmers, mechanics, laborers, etc. who are not made part of a government formed select militia, which Aristocrotis had just described prior to the above statement in his pamphlet.

In another example, an Antifederalist article printed in the Philadelphia Freeman's Journal and addressed "To the PEOPLE OF AMERICA" noted that:

"[Congress] well know the impolicy of putting or keeping arms in the hands of a nervous people, at a distance from the seat of a government, upon whom they mean to exercise the powers granted in that government. . . they at their pleasure may arm or disarm all or any part of the freemen of the United States, so that when their army is sufficiently numerous, they may put it out of the power of the freemen militia of America to assert and defend their liberties, however they might be encroached upon by Congress." [OSA 211, 212]

This Antifederalist statement similarly used disarm to mean removal of all arms from the freemen of the United States, not a failure of government to provide them with arms.

Disarming arguments from the period were often stated in terms of disarming the people, arguments the historians avoided addressing by specifying Antifederalist militia disarming statements. The brief previously denied that the Founders treated the militia as the mass of the people, a completely erroneous statement documented in part 17. Both of the above Antifederalist disarming examples not only directly contradict the assertion in the brief, but they also further illustrate the fact that the historians are either largely unfamiliar with relevant period sources indicating the militia were understood as the people or they are in complete denial of period reality as documented in easily available sources.

Assertion #10 is also Misleading
The historians' assertion also misrepresents and diverts attention away from much of the disarming argument during the ratification period. In conjunction with Mason's disarming statement, it is used to further separate the clear bill of rights related disarming statements voted on in two ratifying conventions from the militia powers only related history being advanced by the historians to explain away "the right of the people to keep and bear arms" provision of the U.S. Bill of Rights. In the Pennsylvania Ratifying Convention this proposal was made:

"That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power." [OSA, p.151]

This Antifederalist disarming language was simply added to the existing Mason Triad from Pennsylvania's 1776 Declaration of Rights. The state's right to bear arms language was treated as a variant of a well regulated militia reference by the historians themselves earlier in their brief in order to divert attention away from it (see part 6, below). It is obvious that Pennsylvania's language, both the 1776 state bill of rights and the 1787 proposed federal bill of rights, was intended to protect private rights to possess and use arms for self defense, defense of the state, and in the latter case for defense of the country and for hunting, and that the use of disarming relates to preventing confiscation or prohibition of private weapons used for any and all of those purposes. The disarming language here cannot be taken in any other way. This is undoubtedly the reason why the historians felt compelled to address so many pages of their brief trying to explain away Pennsylvania bill of rights language during both periods (see parts 5 through 8 and 14).

Another Antifederalist disarming statement is the proposed amendment adopted by the New Hampshire Ratifying Convention:

"Congress shall never disarm any citizen, unless such as are or have been in actual rebellion." [OSA, p. 456]

This clearly related to preventing confiscation or prohibition of private weapons. If Congress could not disarm any citizen, it could not disarm any militiaman of his own weapons either, thus preventing disarming of the militia as then understood, the mass of the people. The historians simply divert attention away from the above clearly Second Amendment related provisions by arguing they do not contain a militia reference like the Second Amendment does.

Federalists, who were openly opposed to disarming of the people, made some of the clearest arguments about disarming them of their own arms, all of which the historians ignore here by specifying a particular use of disarming by Antifederalists. It was because of the often stated fear by Antifederalists that the people would be disarmed that Federalists offered a counter argument that disarming was not intended or possible under the proposed U.S. Constitution. Here are some examples:

"Before a standing army can rule, the people must be disarmed; as they are in almost every Kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States." [Noah Webster], [OSA, p.40]

The people must be disarmed here refers to taking private arms away from the people.

"Tyrants never feel secure until they have disarmed the people. . . .But the people of this country have arms in their hands, . ." [The Republican], [OSA, p.190]

This reference also uses disarmed to mean taking arms away from the people and prohibiting their possession.

"Congress have no power to disarm the militia. Their swords, and every other terrible instrument of the soldier, are the birthright of an American." [Tench Coxe], [OSA, p.276]

Clearly, it was not the birthright of an American to be given arms by the government. The vast majority of all small arms suitable for military defense were privately owned weapons belonging to the people who possessed them. The disarm reference related to confiscating and prohibiting privately owned arms.

"The people are not to be disarmed of their weapons. They are left in full possession of them." [Zacharia Johnson], [OSA, p. 452]

Disarmed is used here to mean confiscation and prohibition of private arms.

In addition to Federalist disarming statements relating to the impossibility of confiscation and prohibition of private arms, there were a large number of Antifederalist disarming statements directly related to a specific Pennsylvania Executive Council action calling for collection of all publicly owned arms from militiamen in the state for clearing and repair. This action did not relate to privately owned arms, but shows Antifederalists used disarm in relation to removing arms from the hands of militiamen. Antifederalist commentary there pointed out the advantage of the militia being able to rely on their own arms, which could not be collected by the government, rather than those belonging to the state (Pennsylvania provided publicly owned arms for one-fourth of its militiamen).

Conclusion - Assertion #10 is Erroneous and Presents an Extremely Misleading View of Period Disarming Arguments
Period evidence contradicts the historians that militia disarming references by Antifederalists did not relate to confiscation or prohibition of private weapons. Also, the historian's argument is misleading because disarming arguments of the period often equated the militia and the people as in the two Antifederalist examples. There are numerous other references to disarming the people from Federalists, who also opposed confiscation or prohibition of private weapons, and who also understood the people to be the militia. The historians used this assertion in relation to the Mason quote, once again, to separate militia related arms discussion from discussion of private arms, when the period sources indicate no such unnatural separation, and instead, routinely equated the militia and the people, as noted in post 17. Militia arms were overwhelmingly the people's privately owned arms.

Rather than enlightening, the historians' assertion further confuses readers about period disarming statements, thus indicating the historians are confused about the subject. Disarming of the militia during the ratification era meant disarming of the people because period sources treated them as one and the same.

Sunday, May 24, 2009

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

Off-Track Militia Powers Historiography Erroneously Linked to Origin of the Second Amendment in the Rakove Heller Amicus Brief
[Updated July 18, 2009]

The heart of Professor Rakove's Heller amicus brief consists of eight consecutive pages consisting of militia powers development in the Federal Convention, subsequent ratification era dispute about those powers, culminating with Virginia Ratifying Convention debate on that subject. An Antifederalist argument about disarming the militia is the emphasized point concerning militia powers discussion in Virginia's convention. The historians point out that Virginia's convention is where the Second Amendment's antecedent language originated, ostensibly as the result of all the militia powers debate and the Virginia Convention disarming statement they have detailed and emphasized.

A George Mason statement regarding disarming the militia made in Virginia's convention is the vehicle used in the brief to link the militia powers debate to appearance of the Second Amendment's predecessor language.

"George Mason similarly imagined how the militia might be disarmed: not by the federal government confiscating weapons, but rather, “Under various pretences, Congress may neglect to provide for arming and disciplining the militia, and the State Governments cannot do it, for Congress has an exclusive right to arm them.” [p.20]

The brief points out that Virginia Federalists responded to Mason indicating that power over the militia was concurrent between the state and federal governments, thus assuring the state's ability to arm the militia. Mention of the Second Amendment predecessor is then inserted into the historians' militia powers history at this point:

"Because the Virginia convention was so evenly divided, Federalists accepted a proposal to recommend constitutional amendments to the first Congress. This was where the antecedent wording of the Second Amendment can be found, closely followed by the similar language adopted by New York two weeks later." [pp. 20-21]

While the subjects of the militia and disarming can certainly be related to the Second Amendment's language, the Second Amendment antecedent from Virginia did not result from the militia powers dispute that Mason was discussing in the quote presented by Professor Rakove. The Second Amendment instead resulted from ongoing demands for a federal bill of rights based on existing state bill of rights protections, an intense ratification era dispute that Professor Rakove virtually ignored in the professional historians' brief. Further examination of the Virginia militia powers debate details and the actual amendments proposed by Virginia make this point very clear.

The Mason quote in the brief relating to disarming the militia was his presentation of a plausible method by which the new federal government could justify a permanent standing army by destroying the militia through inaction. The government could simply fail to provide for arming and disciplining the militia. Mason's disarming argument was offered in support of the Antifederalist view that power over arming and disciplining the militia should be guaranteed to the states in the new Constitution. In fact, Mason stated exactly what type of amendment Antifederalists in Virginia desired to solve these concerns immediately after making his militia disarming related arguments:

"in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the states may arm and discipline them. With this single exception, I would agree to this part [of the Constitution]" [The Origin of the Second Amendment, p.402]

The concern expressed in the militia powers related arguments, including Mason's quote in the brief, related to guaranteeing state authority over the militia. It did not relate to adding state bill of rights protections, such as the Second Amendment predecessor, to the U.S. Constitution. At the close of Virginia's convention, Antifederalists proposed two lists of amendments - a complete Bill of Rights and a list of twenty "other" amendments, both later adopted by the Convention. All of the Bill of Rights provisions were directly based on existing state bills of rights provisions, while none of the "other" amendments were so based.

George Mason, as chairman of the Antifederalists' amendments committee, was the author of both lists of amendments. It was one of these “other” Mason prepared amendments that was specifically intended to solve the lack of state militia power concern expressed in his disarming argument.

"11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same." [OSA, p.460]

It cannot be more clear that it was this proposed “other” amendment that resulted from Mason's militia disarming argument in the Virginia Ratifying Convention, not the antecedent Second Amendment language from the proposed Bill of Rights.

Professor Rakove does not accurately quote the Second Amendment predecessor language that his brief suggests as the resolution of Mason's disarming argument and the militia powers debate. This language comes from Article 17 of the proposed Bill of Rights:

"17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power." [OSA, p. 459]

This Bill of Rights proposal is obviously based directly on the existing 1776 Virginia Bill of Rights Mason Triad, the major difference being addition of a right to bear arms variant added to the well regulated militia language at the beginning. [See part 7 for development of the original Mason Triad.] Making use of both right to bear arms and well regulated militia language from existing state bills of rights, it is the original two-clause Second Amendment predecessor.

There is absolutely nothing in this Second Amendment antecedent language indicating any intent to guarantee state authority over the militia or to shift such power from the federal government back to the states. Both clauses of this provision are taken from existing state government limiting bill of rights with the intention of limiting the new government in exactly the same way the state governments were limited. Existing state bill of rights provisions could not have been intended to alter or shift powers between the state governments and the new federal government because all of their protections had been adopted years before the U.S. Constitution was written.

The Rakove professional historians' Heller brief presentation of Second Amendment history has ripped the Second Amendment out of the Bill of Rights, torn it in half, and discarded the right of the people to keep and bear arms clause in order to advance the militia clause as relating solely to protection of state authority. But this argument is directly contrary to the origin of the Second Amendment predecessor clauses in existing state government limiting bills of rights. Blindly advancing a militia powers only intent for the Second Amendment, the professional historians have failed to connect any of the proposed ratification era protections for the right of the people to keep and bear arms with their immediate state bill of rights antecedents.

The more one studies the details and facts relating to the origin of the Second Amendment, the more it becomes evident that the historians' have made a major historical blunder by emphasizing militia powers development and related disagreements during ratification as the origin of the Second Amendment while virtually ignoring the extensive period demands for a federal bill of rights based on existing state bill of rights protections. The latter arguments resulted in development of the Second Amendment, not the former. This is the very reason why the Rakove professional historians' Heller amicus brief contains so many erroneous statements and inconsistencies, as documented in previous parts of this series.

Thursday, May 7, 2009

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

Ignored Facts, Unfounded Assertions, and the Rakove Professional Historians' Heller Amicus Brief
Updated May 8, 2009

After their presentation of militia powers development in the Federal Convention, which was discussed below in part 10, the historians proceeded to discuss militia matters relating to arms during the ratification period while virtually ignoring the widespread and intense bill of rights dispute from that period. That there were incessant demands for the protections found in the state bills of rights, all of which included Second Amendment predecessors, goes entirely unmentioned by the historians, who are supposedly presenting the history of a Bill of Rights provision. Many of the historians' statements regarding the ratification era debate are completely contradicted by period sources and in some cases by evidence from within their own brief. For an example of the latter, take this statement from the historians:

Assertion #8
"Discussion of citizens' access to firearms during the ratification debates of 1787-1788 focused nearly exclusively on the comparative merits and risks of a standing army or the militia." [p.18]

Fact Checking Assertion #8
The above assertion is directly contradicted by the historians' own brief because they distinctly noted that the first three arms protecting provisions addressed in state ratifying conventions, which were treated out of order later in their brief, related to "private ownership of firearms." Those three provisions were directly addressed in the previous three parts of this series by placing them back in their proper developmental order. None of these provisions were combined with references to a well regulated militia, something the historians have used to misinterpret the purpose of the right to arms provisions that well regulated militia references were later combined with. The historians separated the three early arms proposals from any connection with the Second Amendment even though they all clearly protected the right of the people to keep their own arms. Pennsylvania's provision prevented individuals from being disarmed, as did Samuel Adams' proposal and that adopted by the New Hampshire Ratifying Convention.

Further discussing ratification debate about "the comparative merits and risks of a standing army or the militia," the historians stated that:

Assertion #9
"these exchanges treated the militia not as the disembodied mass of the people, but as a legal institution subject to concurrent national and state administration." [p.19]

Fact Checking Assertion #9
This statement is directly contradicted by numerous period sources, only a few of which are presented here. The use of the term militia in Hamilton's The Federalist #29, a source referred to on the previous page in the historians' brief, directly refutes their statement. Hamilton provides three different definitions of the militia in this text alone:

"the great body of the yeomanry and of the other classes of citizens"
"the people at large"
"the whole nation"

[OSA, pp.197,198]

Contrary to the historians' claim, Hamilton's descriptions treat the militia as the mass of the people, not as an institution. For another Federalist's viewpoint, look back at part 12 and Tench Coxe's Federalist Mantra (below). Coxe describes the militia as "ourselves" in an article addressed to "the Citizens of America." He also describes the militia as "the yeomanry of America from sixteen to sixty." Were the yeomanry of America from sixteen to sixty an institution? Would one describe an institution as ourselves, meaning the citizens of America?

Also in direct conflict with the historians' claim, this time from an Antifederalist, is George Mason's statement in the Virginia Ratifying Convention:

"Who are the militia? They consist now of the whole people, except a few public officers." [OSA, p.430]

Mason's view also contradicts the historians since he treats the militia as the mass of the people, not as an institution.

Conclusion - Assertions #8 and #9 are Both Erroneous
It is not true that discussion of citizens access to firearms during the ratification period focused nearly exclusively on the merits and risks of a standing army or the militia as the historians asserted. As noted by the historians themselves, proposals protecting private possession of arms were discussed and voted on in a number of the state ratifying conventions. It is also not true that such discussion during the period treated the militia as an institution rather than as the mass of the people. Alexander Hamilton's usage in The Federalist #29, Tench Coxe's usage in A Pennsylvanian III and George Mason's usage in the Virginia Ratifying Convention all directly contradict this assertion by the historians. A considerable amount of other period historical evidence also contradicts the historians regarding these two points (see 800 pages of period sources in The Origin of the Second Amendment for numerous other examples).

Those relying on the historians' brief for their understanding of period sources and history should once again consider the fact that, in spite of their claims, the historians are either not overly familiar with relevant period sources, or they are so biased as not to notice when those sources contradict their own statements. What is more likely is that both of these possibilities are in play.

Sunday, April 26, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 16

Historians Ignore the Bill of Rights History of the Second Amendment

The arms protecting provision adopted by the New Hampshire Ratifying Convention, even though recognized right along with the Pennsylvania minority and Sam Adams Massachusetts proposals in the professional historians' Heller amicus brief as relating to “private ownership of firearms," was treated in exactly the same way as the other two provisions discussed in prior posts. All connection to the ongoing political struggle for a federal bill of rights was completely overlooked and no relationship to the future Bill of Rights provision protecting the people's right to arms noted. Even though New Hampshire's proposals obviously related to protections later found in the First, Second, Third, Fifth, Seventh, and Tenth Amendments, the historians disposed of the arms provision without further comment on that state's Bill of Rights proposals than by quoting the Second Amendment predecessor and stating it was "a formula unique to the discussions of 1787-1788." They provide no bill of rights related connection whatever, even though their brief is purportedly a presentation of the Second Amendment's history.

Here is the New Hampshire arms provision in its original bill of rights related context:

"X. That no standing army shall be kept up in time of peace, unless with the consent of three fourths of the members of each branch of Congress; nor shall soldiers, in time of peace, be quartered upon private houses, without the consent of the owners.
XI. Congress shall make no laws touching religion, or to infringe the rights of conscience.
XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion".[The Origin of the Second Amendment, p.446]

Within these three bill of rights related proposals are found the very first ratifying convention adopted predecessors for freedom of religion, the right to keep arms, and against quartering of soldiers, protections found in the First, Second, and Third Amendments. New Hampshire's language that "Congress shall never" make laws to "disarm any citizen" is exactly the type of language it used in its protection of religious freedom. In fact, New Hampshire doubles up on the strongest of restrictive language by declaring that "Congress shall make no laws" about religion or "to infringe" rights of conscience, adding restrictive language of the type later used in the Second Amendment to the exact quote of the restrictive language later used in the First Amendment.

New Hampshire's use of First Amendment type restrictive language to protect a Second Amendment related right is used by the historians to classify it as "unique" and ignore the clear relationship to the Second Amendment's strong protection for the right to keep arms. Failure by the historians to relate New Hampshire's bill of rights related arms proposal, or the prior ones in the Pennsylvania and Massachusetts conventions, to the ongoing political struggle for a federal bill of rights and later development of the Second Amendment is typical for this brief.

Such failure stands in stark contrast to discussion of a period Bill of Rights proposal by Richard Henry Lee in the Confederation Congress (misidentified as the Continental Congress). Professor Rakove's brief singles out Lee's proposed Bill of Rights to further a militia argument and to emphasize that it had no arms provision. That this is the sole mention of a ratification era “Bill of Rights” within the brief is bizarre considering the massive amounts of historical information relating to this subject and the stated intent of the brief to present the history of a U.S. Bill of Rights provision. As in this case of the New Hampshire arms proposal and R.H. Lee's proposed Bill of Rights, the historians' routinely pursue less relevant sources while disassociating clearly Second Amendment related bill of rights provisions rather than associating and connecting them historically to development of the Second Amendment.

This is a further reason why the historians brief is completely unreliable.

Thursday, April 16, 2009

Houghton, Michigan Tea Party Pictures - April 15, 2009

Pictures from the April 15, 2009 Houghton, Michigan Tea Party Protest

At least 150 participants assembled at noon at the Houghton County Courthouse to begin the day's protest activities.

The protesters then marched three blocks to the Veterans' Memorial Park located at the south end of the Portage Shipping Canal lift bridge.

There were at least 200 participants at the Veterans' Memorial Park Tea Party Protest at 1:00PM on April 15, 2009.

A number of speakers were scheduled to talk during the afternoon starting at 1:00PM.

The weather was exceptionally nice for the Tea Party Protest. A number of the passing vehicles on Montezuma Avenue (just behind the photographer) honked their horns when passing by, even though there were no signs requesting a supporting honk from passing motorists.

Tuesday, April 14, 2009

Tea Party Protest Inspired Repost And Update: Thomas Jefferson on Government Deficit Spending

Jefferson on the Moral Prohibition Against Saddling Posterity With Our Debts

Thomas Jefferson's views on government debt can be inserted into the modern debate over deficit spending by the Federal Government as if they were specifically meant for the present "crisis." Jefferson argued that "we act as if we believed" that "the aggregate body of fathers may alienate the labor of all their sons, of their posterity, in the aggregate, and oblige them to pay for all the enterprises, just or unjust, profitable or ruinous, into which our vices, our passions, or our personal interests may lead us." Because "an individual father cannot alienate the labor of his son," Jefferson stated that we are "unauthorized to saddle posterity with our debts, and morally bound to pay them ourselves".
[Bergh, ed., The Writings of Thomas Jefferson, XIII, 358]

Jefferson's views on federal deficit spending, federal usurpation of state authority, and the expansion of federal executive authority are right to the point in light of modern trends in federal government policy.

“I am not for transferring all the powers of the States to the General Government and all those of that government to the executive branch. I am for a government rigorously frugal and simple, applying all the possible savings of the public revenue to the discharge of the national debt, and not for a multiplication of officers and salaries merely to make partisans, and for increasing, by every device, the public debt on the principle of its being a public blessing.”
[Dumbauld, ed., Jefferson: His Political Writings, 47]

A way to approach straightening out the mess that is occurring in Washington DC is to insist that the Constitution be obeyed. Only state governments, not the federal government, should exercise powers reserved to the states by the Constitution, and only the state governments should tax for those purposes, not the federal government. The federal government has no constitutional power over education or health care because these are clearly reserved to the states by the Tenth Amendment. Also, it should be evident that no one can justifiably be taxed by any level of government to pay for the gambling debts and losses due to open speculation by others, whether by individuals speculating in the housing market or corporations speculating in credit default swaps.

Monday, April 6, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 15

Historians Consistently Ignore Second Amendment's Bill of Rights History

The professional historians' made this claim in their Heller amicus brief:

"Had Anti-federalists continued to want to push for the constitutional protection of firearms, ample time remained to muster support in the nine states yet to act on the Constitution. . . . If the Pennsylvania dissenters tried to place the question of a private right to arms before the body politic, their fellow Americans declined their summons." [p.24]

There is no doubt that the Antifederalist Pennsylvania minority placed their "bill of rights" including a private right to arms before the American body politic because their Dissent was one of the most widely reprinted of all ratification era political texts. They were trying to protect rights already found in their own state's declaration of rights. Directly contrary to the historians' claim, Americans did respond to the minority's demands for a bill of rights containing private right to arms protection. This occurred through the votes of delegates in six subsequent state ratifying conventions, five of which adopted such bills of rights.

The first convention to follow Pennsylvania's with a bill of rights vote was Massachusetts, where Samuel Adams attempted to add protection for freedom of the press, religion, petition, the right of peaceable citizens to keep arms, against unnecessary standing armies, and prohibiting unreasonable searches, all protections found in his own state's declaration of rights. Adams' bill of rights motion was defeated by the Federalists.

Federalist Jeremy Belknap was present during the Massachusetts Ratifying Convention debates. His period commentary regarding Adams' bill of rights protections follows:

"It was matter of speculation how Mr. Adams came to propose such amendments. . . . In a week or two afterward came along a protest of the Pennsylvania minority, in which these very things are objected to the Constitution which he [Adams] proposed to guard against by his motion. It is said the copies of these protests were purposely detained on the road; but it is supposed Adams had a copy in a letter before the Convention was dissolved." [The Origin of the Second Amendment, p.263 n4, emphasis in original]

Belknap was not the only period actor to link the Pennsylvania Minority's arms protecting bill of rights to later bill of rights proposals. Frederick Muhlenberg, speaker of the House of Representatives, linked the bill of rights proposals of the Pennsylvania minority's 1787 Dissent to the future U.S. Bill of Rights provisions under consideration in Congress in 1789 as follows:

"tomorrow we shall take up the Report & probably agree to the Amendments proposed, & which are nearly the same as the special Com[m]itte[e] of eleven had reported them. . . .it takes in the principal Amendments which our [Pennsylvania] Minority had so much at Heart. . ." [The Origin of the Second Amendment, p.799]

It turns out that Samuel Adams' bill of rights arms proposal, which the historians themselves recognized as relating to the "private ownership of firearms" (see Part 14), was also understood by the Boston Independent Chronicle and the Philadelphia Independent Gazetteer as specifically included within the House Bill of Rights predecessors that Speaker Muhlenberg wrote about above. This means constitutional protection for the "private ownership of firearms" was widely understood as included in the Second Amendment's House predecessor. Here is the excerpt from these newspapers:

"It may well be remembered that the following "amendments" to the new constitution for these United States, were introduced to the convention of this commonwealth [Massachusetts] by . . . Samuel Adams. . . .every one of the intended alterations, but one, have been already reported by the committee of the house of Representatives in Congress, and most probably will be adopted by the federal legislature."

This is Sam Adams' amendment relating to the private ownership of firearms:

"And that the said Constitution be never construed to authorize Congress. . . to prevent the people of the United States who are peaceable citizens, from keeping their own arms;" [The Origin of the Second Amendment, pp.701-702]

All of Samuel Adams intended alterations but one about standing armies were actually added to the U.S. Constitution by amendment. Those added were protection for freedom of the press, religion, petition, the right of the people to keep arms, and protection against unreasonable searches. These are all protections for private rights.

Even though the historians recognized both the Pennsylvania minority and Samuel Adams arms protections as relating to "private ownership of firearms," they refused to recognize their bill of rights context and the fact that these protections were already found in their respective state's declaration of rights. Ignorance of the fact that the Heller amicus brief argument from fifteen academic historians is internally inconsistent historically and directly controverted by the most relevant period sources is a root cause of never-ending Second Amendment dispute.

Tuesday, March 31, 2009

Challenge to Supporters of the Heller Dissent

Self-Check Accuracy of the Historians' Heller Amicus Brief
[Updated January 20th, 2012]

This is a challenge to those who believe that the Heller case was wrongly decided. If you are one of those who think that the four dissenting U.S. Supreme Court justices in the case had the historical facts on their side and made the better argument about the Second Amendment, here is the challenge. Verify for yourself whether statements in the professional historians' amicus brief, which the dissenting justices based their history upon, are supported by historical facts.

All that is necessary is to read the statement from the historians' brief below, then click on the direct page links to Google Books posting of F.N. Thorpe's Federal and State Constitutions to verify the accuracy of the statement in the historians' Heller amicus.

Here is the specific statement in the historians' brief to self-check for accuracy:

"In only two states (Pennsylvania in 1776, Massachusetts in1780) were they [state declarations of rights] made part of the actual constitutions.” [pp.9-10]

First, check North Carolina's 1776 Constitution, Article XLIV, page 2794 of Thorpe, Volume 5. This article of the constitution specifies "That the Declaration of Rights is hereby declared to be a part of the Constitution of this State, and ought not to be violated, on any pretense whatsoever." This fact directly contradicts the statement in the historians' brief.

Next, check Vermont's 1777 Constitution, Section XLIII, page 3748 in Thorpe, Volume 6. This section also specifies "That the declaration of rights is hereby declared to be part of the Constitution of this State, and ought never to be violated, on any pretense whatsoever." Both North Carolina's and Vermont's provisions were copied almost verbatim from the 1776 Constitution of Pennsylvania. These provisions make two direct contradictions between period historical sources and the above quoted statement found in the professional historians' Heller brief.

Perhaps another contradiction is needed to emphasize the point being made here. If so, check the New Hampshire 1784 Constitution on page 2453 of Thorpe, Volume 4. [This link no longer works.] Page 2453 of Thorpe, Volume 4, indicates that New Hampshire's 1784 "Bill of Rights" is "Part I" of its Constitution, and page 2458 indicates that "PART II" is "The Form of Government". These facts also directly contradict the statement made in the Rakove historians' brief that only the declarations of rights of Pennsylvania and Massachusetts were "made part of the actual constitutions."

Such glaring and recurring contradictions between relevant historical documents and the simple claim made in the brief call into serious question the reliability of the historians' amicus, which is a foundation of Justice Stevens' Heller historical dissent.

It cannot be conceived that these fifteen historians have purposefully misrepresented the point of their statement to the U.S. Supreme Court. The only alternatives are that the historians may not be as familiar with relevant period history as claimed in the brief, or the historians' statement is a misprint. However, the latter is not the case because Professor Jack Rakove of Stanford University, the author of the brief, made and emphasized exactly the same erroneous assertion to Professor Eugene Volokh of UCLA during a Bloggingheads TV diavlog shortly after the Heller decision. [at 31:40 in the presentation]

These considerations narrow down to one the reason for the error in the professional historians' brief. They are actually not overly familiar with the most relevant historical sources for understanding the Second Amendment's history, and, as a result, the historians' Heller amicus brief is historically unreliable.

For those willing to accept what their own eyes can see and consider the possibility that Heller was rightly decided because the dissent relied on what is inherently unreliable, read the Root Causes of Never-ending Second Amendment Dispute series posted on this blog. It demonstrates that the above contradiction, analyzed in part 1, is merely the tip of a huge iceberg of erroneous statements, internal contradictions, fallacious arguments, and off-track history that make up the historians' Heller amicus brief.