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.