Saturday, March 21, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 12

Ratification Era Arms Arguments Misconstrued in the Historians' Heller Amicus Brief

Regarding the ratification period arms related arguments, the historians state that:

"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]

The historians view militia related discussion solely as indicating government authorized militia. Thus, their statement above is entirely misleading. They do not recognize any relationship between the militia mentioned in the Second Amendment and its actual predecessor language in the state bills of rights, which were all restrictions on state authority in favor of an armed civil population rather than references to government authorized militia. The state declarations of rights provisions uniformly related to an armed population that not only authorized the revolutionary era state governments but also secured the civil population's ultimate control over government raised military force. The same bill of rights related concepts of civil control of the military hold true for much of the arms related debate during ratification, although the historians consistently ignored it by refusing to relate the Second Amendment to its state declaration of rights predecessors or to the ongoing period bill of rights dispute.

There were two opposing and oft repeated ratification era arguments about arms and military force appearing in the writings of the period's political partisans that related to bill of rights history much more so than to the historian's proffered militia powers history. A common Federalist Mantra, asserted by those supporting ratification and arguing against a bill of rights, indicated, in its simplest form, that military tyranny was impossible in America because the people were armed. The Antifederalist Mantra was the contrary view from those opposing ratification and supporting a bill of rights. This mantra was a warning that the new government's overwhelming control of military force, whether standing army, select militia (understood as a part-time standing army), or militia in general would be used in such a way as to disarm the people and impose military tyranny and oppression. Simple inclusion in a federal bill of rights of the protections already existing in every one of the state declarations of rights would solve this bill of rights related problem. The historians obviously miss the bill of rights related point of these arguments, that an armed populace is necessary to prevent tyranny. [For more information on the Federalist and Antifederalist Mantras, see The Founders' View of the Right to Bear Arms.]

Thus, it was not only the Antifederalists that painted a clear picture of an armed populace during the ratification debate. Federalist Mantras presented the reverse arms related argument, which was also often unconnected with government authority over militia. Here is the very detailed Federalist Mantra of Tench Coxe presented in his pseudonymous A Pennsylvanian III article addressed to the citizens of America (Feb. 20, 1788):

"The power of the sword, say the minority of Pennsylvania is in the hands of Congress. My friends and countrymen, is is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army must be tremendous and irresistable. Who are these militia? are they not our selves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. What clause in the state or foederal constitution hath given away that important right."

Coxe went on to discuss military power and its constitutional authorization in America, but he emphasized that "the unlimited power of the sword is not in the hands if either the foederal or state governments, but, where I trust in God it will ever remain, in the hands of the people." [Origin of the Second Amendment, pp.275-276, all emphasis is in original]

An interesting point about this Federalist Mantra is that Coxe was inspired to write it by James Madison's own Federalists Mantra found in The Federalist #46.

The historians' statement about arms discussions is misleading because it ignores the nature of numerous Federalist and Antifederalist Mantras, all of which emphasize the essential importance of an armed populace to prevent tyranny. It was the state declarations of rights arms provisions, which the historians misinterpreted and refused to connect with development of the Second Amendment, that protected the existence of an armed populace against government power. This concept is inherently dependent upon protection of individual rights.

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