Wednesday, March 4, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 7

The Historians' Heller Amicus Brief and Ignored Facts Examined

The professional historians brief mentioned three "statements, either bundled together in one article or linked in successive articles of the state declarations of rights" that related to "a well regulated militia, the danger of standing armies, and the importance of maintaining civilian control over the military." [p.10] Only mentioning these three-part bundles in passing, the historians misinterpreted Pennsylvania's version (see previous post) and later used that misinterpretation to divert away from relevant bill of rights history to an entirely irrelevant military history for the Second Amendment. It is essential for a proper understanding of the Second Amendment's bill of rights predecessors found in every state declaration of rights that these three-part statements be further examined.

Mason Triads and Second Amendment Predecessors
The fact is that every one of the eight state declarations of rights extant when the U.S. Bill of Rights was written included a Second Amendment predecessor. These arms related provisions were always the leading clause in a three-part structure, the second part of which indicated standing armies were dangerous to liberty. The third part invariably declared that the military would be subordinate to and governed by the civil power.

These tri-part structures have been named Mason Triads in The Founders' View of the Right to Bear Arms, which examines their development in Chapter 4. The first of these triads was written by George Mason as Article XIII of Virginia's Declaration of Rights of June 12, 1776. This original version of the Mason Triad, which begins with the earliest American bill of rights related predecessor of the Second Amendment's first clause, declared:

"That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power." [OSA pp.748-749]

Seven additional states subsequently adopted declarations of rights and each uniformly adopted a Mason Triad, some with variation of the Second Amendment related leading part. Three states copied George Mason's well regulated militia reference, generally shortening the provision by dropping the arms reference and the definition that the body of the people composed a well regulated militia. These four well regulated militia references were all Revolutionary era documents. During the American Revolution it was obvious to everyone exactly who composed a well regulated militia - the body of the people with their own arms.

Four other states, beginning with Pennsylvania's own Article XIII on September 11, 1776, replaced the well regulated militia language with a declaration that the people have a right to bear arms for defense as the lead Mason Triad language. Pennsylvania's Mason Triad, which is the earliest of this version and the original American bill of rights related predecessor of the Second Amendment's second clause, stated:

"That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power." [OSA p.754]

Three subsequent state declarations of rights copied Pennsylvania's Second Amendment related language with each dropping the reference to "defence of themselves" and varying the defense of the state language slightly. Massachusetts also added language regarding the people having a right to keep arms. This was undoubtedly because the British, who were in military control of Boston, had disarmed the townspeople of their personal arms after the Battles of Lexington and Concord and had been involved in seizing powder in numerous locations even prior to then. These four "people have a right to bear arms" provisions were also all Revolutionary era documents. During the American Revolution it was obvious to everyone that they had a right to take up their own arms for defense against the threat of government tyranny imposed by military force.

In the previous three posts it has been demonstrated, contrary to the professional historians' claims, that Pennsylvania's “people have a right to bear arms” language was intended to protect private ownership and personal use of arms, both for defense of themselves AND for defense of the state. Pennsylvania's language taken in context, its colonial history, and its state government limiting Mason Triad all indicated that the historians' interpretation was completely wrong. Additionally, the historians had entirely misconstrued the purpose for state declarations of rights, erroneously claiming that they were not legally binding and were merely lists of principles and common law rights, which would have allowed the state governments to alter them at will.

As noted in the previous post, the historians treated right to bear arms protections as equivalent to well regulated militia provisions. Logically, if the historians are correct about them being variations of each other, it means they are incorrect about their interpretation of well regulated militia references in bills of rights because they are wrong about the meaning of right to bear arms references such as Pennsylvania's. Think about this. The validity of their treatment and its effect on their interpretation of Second Amendment predecessors will be examined in detail in the next post.

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