Bill of Rights History Ignored in the Historians' Heller Amicus Brief
Diverting entirely away from the history of the U.S. Bill of Rights, fifteen historians instead pursue a history about militia powers development in the Federal Convention, disagreement over militia powers during ratification, and the preparation of an amendment to solve the militia powers dispute as the explanation for the existence of the Second Amendment. In their eyes, it is the Second Amendment that was specifically developed to solve the state/federal militia powers dispute. Their militia powers dispute based history simply ignores the actual genesis of the extensive Bill of Rights ratification era debate and starts with a discussion of the militia powers development within the 1787 Federal Convention instead.
The beginning salvo of the historians' non-rights based argument about Second Amendment development is this assertion:
"The one issue addressed at the 1787 [Federal] Convention that could affect citizens' access to firearms concerned the militia." [p.14]
Fact Checking Assertion #7
On the contrary, there is only one issue addressed at the Federal Convention that would affect citizens' access to firearms and also directly relate to future development of the U.S. Bill of Rights and ALL of its first eight amendments. That issue was the demand for a bill of rights as part of the Constitution. It was initiated by George Mason, who tried to obtain a bill of rights committee and suggested a bill of rights could be developed within hours from the state declarations of rights (ALL of which contained Second Amendment predecessors). This much more relevant Bill of Rights related issue is completely ignored by the historians.
It must be kept in mind that the historians' Heller case brief supposedly relates to the history and intent of the Second Amendment, which is a U.S. Bill of Rights provision. Here is the actual beginning of demands for the Second Amendment and the other first eight provisions of the U.S. Bill of Rights (all taken from state bills of rights) from within the Federal Convention. It is the bill of rights related exchange of September 12, 1787:
"Mr. MASON . . .He wished the plan had been prefaced with a bill of rights, and would second a motion, if made for that purpose. It would give great quiet to the people, and, with the aid of the state declarations, a bill might be prepared in a few hours.
Mr. GERRY concurred in the idea, and moved for a committee to prepare a bill of rights.
Mr. MASON seconded the motion.
Mr. SHERMAN was for securing the rights of the people, where requisite. The state declarations of rights are not repealed by this Constitution, and, being in force, are sufficient . . .
Mr. MASON. The laws of the United States are to be paramount to the state bills of rights." [OSA p.12]
Mason's attempt to obtain a bill of rights committee in the Federal Convention was defeated. Mason went on to become the most prominent Antifederalist leader promoting a bill of rights during ratification because of his notorious refusal to sign the Constitution due to lack of a bill of rights.
Something that is apparent from the exchange between Mason, Gerry, and Sherman was that all three understood the state declarations of rights as intended to secure the rights of the people against violation by the existing state governments. This historical information directly contradicts the historians' prior argument regarding that matter again and further demonstrates the erroneous foundation it is based upon.
Conclusion - Assertion #7 is Erroneous
Clearly, the militia (meaning government militia power) was not the only issue addressed at the Federal Convention in 1787 that could affect citizens' access to firearms. The historians' assertion is erroneous because they have ignored Bill of Rights related information that is much more relevant to the actual developmental history of the Second Amendment. The Second Amendment is a Bill of Rights provision and was developed directly from state declaration of rights provisions. There was an unsuccessful attempt in the Federal Convention to add a bill of rights to the Constitution based upon the state declarations of rights. That issue was the clear genesis of the major ratification era dispute over the need for a bill of rights as part of the Constitution. Later addition of the first eight amendments to the Constitution was a direct result of the ratification era bill of rights debate, which had as its object addition of the state declaration of rights protections in a federal bill of rights.
Sunday, March 15, 2009
Root Causes of Never-ending Second Amendment Dispute - Part 10
Posted by David E. Young at 2:18 AM
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