Sunday, February 22, 2009

Thomas Jefferson on Government Spending

“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.”

From a letter to Elbridge Gerry of January 26, 1799 [Edward Dumbauld, ed., Jefferson: His Political Writings, Bobbs-Merrill, Indianapolis, 1955, p.47]

Tuesday, February 17, 2009

Commas and the "Original" Version of the Second Amendment

The Original Version of the Second Amendment
 Updated February 2, 2013
One of the interesting claims made by some who have argued Second Amendment intent in the past was that nothing could be determined about the subject without relying on the "original" version of the amendment. Such a claim was advanced to indicate that only the first version, that from Congress, could be relied upon because the "original" Second Amendment had three commas that formed four different clauses. The extensive historical facts relating to Bill of Rights development prior to and during the First Congress in dealing with two clause predecessors were not overly important to such interpreters nor helpful for their interpretation. Knowledge of the Second Amendment's ratification history makes any argument based on comma content appear rather trivial. So what is known about Second Amendment commas and ratification by the states?

When Congress developed the proposed amendments to the U.S. Constitution in 1789, it was working with separate copies of the amendments that were printed by and for the use of the House and the Senate, respectively. [The Founders' View of the Right to Bear Arms, pp.190, 198] Handwritten changes were made to those copies as the final language emerged within each house of Congress. After final wordings were decided upon and the houses agreed, President Washington sent handwritten parchment copies of the proposed amendments to the thirteen original states for ratification action by their state legislatures.

All About Commas
Regarding commas, the first question on this topic would be, were all of these at least 14 handwritten copies of the proposed amendments exactly the same with respect to the number of commas in the Second Amendment's language? This question cannot be answered definitively unless all thirteen copies sent to the states survive, can be located, and can be compared to the copy retained by Congress. The particular copy saved in the National Archives has three commas. Ratification Period versions that were predecessors of this language consisted of two clauses developed from the two different forms of the Mason Triads found in the Revolutionary Era state declarations of rights. The Philadelphia Federal Gazette printing of the proposed amendments from November 28, 1789 exhibits the proposed Fourth Amendment (later to become the Second Amendment when ratified) with only one comma. [The Origin of the Second Amendment, p.716]

Ratification by the State Legislatures
Exactly what transpired within each state legislature in dealing with the proposed amendments is not known, but it is most likely that copies of the amendments were printed by the various legislative bodies so each member of the legislature would have a printed copy to refer to, just as members of Congress relied on their own printed copies within each house.

After ratification by these legislative bodies, many of the state legislatures prepared a copy of their ratified amendments to be returned to the Washington administration as notification of such ratification. Some apparently did not do so because those particular state legislatures adopted all of the proposed amendments and simply indicated they had taken that action. As for those states that returned copies of the amendments ratified, with respect to the Second Amendment, no two of these are exactly alike regarding the number of commas and the words with leading capital letters within them. One even substituted an ampersand symbol for the word "and" in the second clause of the Second Amendment. These facts illustrate what would be common knowledge to anyone who has read a large amount of Founding Era documents. Punctuation (and leading capitalization of nouns) had little or no interpretive meaning then compared to something written in more modern times. Commas were often used rather profusely then and capitalization of the leading letter in all nouns was not uncommon. In other words, these variations were not viewed at the time as affecting the meaning of the Second Amendment's language in any way.

Regarding commas found in the eight different versions of the Second Amendment returned as ratified from various state legislatures, there was at least one of each with zero, one, two, and three commas. [OSA pp.720, 726, 728, 730, 732] The original sources of the Second Amendment's clauses, the leading Mason Triad clauses in the original state declarations of rights, came in two versions - 'well regulated militia as natural defense' and 'right of the people to bear arms for defense'. [FVRBA pp.65, 72] This simple historical fact makes it evident that the Second Amendment has a fundamentally two clause structure. The fact that the Second Amendment was based upon these two different descriptions of a defensively effective armed civil population made the two clause structure obvious to the Founders no matter how many commas (or caps) a copyist might have added or deleted within its language.

Jefferson's Official Imprint
As a final observation on these interesting Second Amendment variations, Thomas Jefferson as Secretary of State in the Washington Administration prepared an official printing of the amendments. This is the version that he authenticated as being the amendments proposed by Congress, ratified by the state legislatures, and made part of the Constitution under the ratification procedure set forth in Article V. Jefferson's official imprint of the Second Amendment has one middle comma with only the leading word, "A", of the sentence capitalized. [FVRBA pp.221-222]

The argument from those who have insisted that the "original" copy of the Second Amendment from Congress containing three commas must be consulted to fully understand its intent is contradicted by these numerous official versions of the Second Amendment as ratified by the state legislatures as well as by Jefferson's printing. Clearly, Jefferson's official imprint, as the National Archives refers to it, is the official version of the ratified Second Amendment recognized and authenticated by the executive branch of the Federal government itself.

Commas Don't Count
The point here is that it is rather futile and potentially misleading to argue the intent of a sentence written at that time in history and based almost exclusively on how many commas it contained. Arguments about comma count within the "original" copy of the Second Amendment add no clarity to discussion of its intent and have often been used to divert attention away from the Second Amendment's actual Bill of Rights history and context. A full understanding of Second Amendment developmental history makes the meaning of its language very clear and helps avoid the pitfalls associated with deciding meaning based on the number of commas contained in the "original" version.

Tuesday, February 10, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 4

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

Having made several erroneous assertions supporting the proposition that the state declarations of rights were not intended as limits upon state legislative authority, the historians moved on to address the arms related provisions within them and made this assertion regarding those provisions:

Assertion #4
"None of the modest variations among the formulae used by different states suggest that the right to bear arms vested in individual citizens for private purposes." [p.11]

Fact Checking Assertion #4
In order to more fully comprehend the bill of rights related purpose and context of the arms related provision found in the 1776 Pennsylvania Declaration of Rights, it and several other provisions and excerpts that are helpful for better understanding period usage are presented here beginning with the title:


I. That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.
II. That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding: . . ."
[OSA p.752]
. . . . .
XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.
XIII. That the people have a right to bear arms for the defence of themselves and the state;. . ."
[OSA p.754]

Section 46 of the Pennsylvania Constitution stated:
"The declaration of rights is hereby declared to be part of the constitution of this commonwealth, and ought never to be violated on any pretence whatever." [OSA p.755]

Nowhere in their Heller amicus brief do the historians mention who it was that the state declarations of rights indicated have a right to bear arms - "the people". Pennsylvania's Declaration of Rights clearly protected an individual's natural, inherent, and inalienable rights to freedom of religion, to defend life and liberty, and to protect property. It similarly protected an individual's right to freedom of speech, writing, publishing, and bearing arms for defense, both of self and the state. These protections were directed against misconstruction and abuse of power by the government and were intended to protect the individuals who were inhabitants of the state.

Conclusion - Assertion #4 is Erroneous
The historians' assertion that Pennsylvania's "the people have a right to bear arms for the defense of themselves" was not describing a right inherent in individuals for private purposes is erroneous. The provisions of Pennsylvania's Declaration of Rights and the period terms and usage found within it directly contradict their assertion. Individuals in Pennsylvania clearly had stated constitutionally protected rights to freedom of religion, to defend life and liberty, to protect property, to speak, to write, to publish, and to bear arms for defense of themselves and the state.

Sunday, February 8, 2009

The Meaning of 'Shall Not Be Infringed'

UPDATED Monday, October 19, 2015

As a result of Second Amendment dispute, it has been suggested that to infringe relative to the fundamental right to keep and bear arms means only to completely destroy the right, and that extensive "reasonable" regulations are legitimate and do not infringe the right. As an example, it has been claimed that a complete ban on certain types of firearms is a “reasonable” regulation and would not violate the "shall not be infringed" restrictive language. A contrary understanding is that infringe means to encroach upon or narrow the right in any way and that the purpose for the "shall not be infringed" language was to prevent regulation of the right.

An excellent method for determining how extensive the Bill of Rights protection based on the verb "infringe" was intended to be in the Founders' view is to rely on historical examples. What can be gleaned from their own use of this term in relation to other Bill of Rights proposals? Here are some of them.

James Madison's Usage
The Second Amendment's "the right of the people to keep and bear arms shall not be infringed" language is exactly what was proposed as the first clause of the amendment by James Madison on June 8, 1789. In addition to that "infringe" based language, Madison also included this freedom of religion related protection in his Bill of Rights proposals to Congress: “nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.” [The Origin of the Second Amendment p.654] Assuming that Madison's intention in preventing religious liberty from being “infringed” was to allow for considerable "reasonable" regulation by the federal government is illogical. In fact, it is clear that the intent of such language was to prevent any interference whatsoever by the government in such matters. The later change to “Congress shall make no laws” language buttresses this period understanding of "infringe" based protection.

Samuel Adams' Usage
Another person who used "infringe" in bill of rights proposals for the Constitution was Samuel Adams in the Massachusetts Ratifying Convention. He attempted to protect freedom of the press and religion with this proposal: “that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience”. [OSA p.260] It is unthinkable that such usage by Adams indicated an intention to allow extensive reasonable regulations of freedom of the press and religious beliefs. Instead, such language was certainly intended as the strongest of limits upon government actions, just as in Madison's case with his infringe based restrictive proposals to Congress regarding freedom of religion and the right of the people to keep and bear arms.

Congressional Amendments Committee Usage
There is other informative period Bill of Rights related use of "shall not be infringed" language often overlooked today due to gun control advocates' historical arguments diverting away from the Second Amendment's actual Bill of Rights history. The Committee of Eleven, to which Madison's proposals were submitted by Congress, accepted his original use of "infringed" relative to freedom of religion as well as his "shall not be infringed" language relative to the right of the people to keep and bear arms. The Committee also added Madison's original Second Amendment restrictive language ("shall not be infringed") to other First Amendment rights – freedom of speech - freedom of the press - the right of peaceable assembly - the right to apply for redress of grievances. All of these, including Madison's “inviolable” freedom of the press and his right of the people to speak, of which they “shall not be deprived or abridged” [OSA p.654], were re-stated by the Committee as rights that “shall not be infringed”. [OSA p.680] Once again, it does not appear that such period usage indicated the Committee members understood that religious beliefs could be subjected to extensive reasonable regulations, or that they used "shall not be infringed" with the intention that it would condone extensive and reasonable regulation of freedom of speech, freedom of the press, the right of peaceable assembly, the right to apply for redress of grievances, or the right to keep and bear arms.

Interpreting this restrictive "infringe" based language in the manner that some advocates of gun control do for Second Amendment usage removes all meaning of the terminology and completely destroys any protective intent of the provision. Such interpretations leave the intended protected rights to be regulated exactly like any other subject placed under the government's power. Such views of the language completely ignore the developmental history of the Bill of Rights, a history that is remarkably well documented because the need for a U.S. Bill of Rights was publicly and privately discussed for more than two full years prior to Congress' proposal of the U.S. Bill of Rights amendments.

Shall Not Be Infringed - Shall Make No Laws
Another interesting period fact is that the style of restrictive language ultimately used in the First Amendment – "Congress shall make no law" - was previously found mostly in Second Amendment related proposals.

The Pennsylvania Minority supported a proposal that: “no law shall be passed for disarming the people, or any of them, unless for crimes committed, or real danger of public injury from individuals". [OSA, p.151]

The New Hampshire Ratifying Convention adopted proposals related to the subsequently adopted First and Second Amendments that stated:
"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". [OSA, p.446]

The restrictive language of New Hampshire's amendment protecting religious freedom contains not only the very words later used as restrictive language in the First Amendment but also the very strongest of restrictions that is based on the verb "infringe". It is inconceivable that infringe was intended in New Hampshire's religious freedom amendment as intended to allow any regulation whatever.

The Strongest Possible Restrictive Language
First and Second Amendment protections were always given the very strongest possible restrictive language – no law shall be passed – shall make no law – inviolable – not be deprived or abridged – not be restrained - shall not be infringed - nor shall the right be infringed - shall make no laws touching - shall make no laws to infringe. The Second Amendment's “right of the people to keep and bear arms shall not be infringed" language was clearly not intended to allow for extensive reasonable regulation. Rather, it was intended to prevent all laws and regulations that would result in the people being deprived, abridged, restrained, narrowed, or restricted in the exercise of their fundamental right to keep and bear arms.