Sunday, April 26, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 16

Historians Ignore the Bill of Rights History of the Second Amendment

The arms protecting provision adopted by the New Hampshire Ratifying Convention, even though recognized right along with the Pennsylvania minority and Sam Adams Massachusetts proposals in the professional historians' Heller amicus brief as relating to “private ownership of firearms," was treated in exactly the same way as the other two provisions discussed in prior posts. All connection to the ongoing political struggle for a federal bill of rights was completely overlooked and no relationship to the future Bill of Rights provision protecting the people's right to arms noted. Even though New Hampshire's proposals obviously related to protections later found in the First, Second, Third, Fifth, Seventh, and Tenth Amendments, the historians disposed of the arms provision without further comment on that state's Bill of Rights proposals than by quoting the Second Amendment predecessor and stating it was "a formula unique to the discussions of 1787-1788." They provide no bill of rights related connection whatever, even though their brief is purportedly a presentation of the Second Amendment's history.

Here is the New Hampshire arms provision in its original bill of rights related context:

"X. That no standing army shall be kept up in time of peace, unless with the consent of three fourths of the members of each branch of Congress; nor shall soldiers, in time of peace, be quartered upon private houses, without the consent of the owners.
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".[The Origin of the Second Amendment, p.446]

Within these three bill of rights related proposals are found the very first ratifying convention adopted predecessors for freedom of religion, the right to keep arms, and against quartering of soldiers, protections found in the First, Second, and Third Amendments. New Hampshire's language that "Congress shall never" make laws to "disarm any citizen" is exactly the type of language it used in its protection of religious freedom. In fact, New Hampshire doubles up on the strongest of restrictive language by declaring that "Congress shall make no laws" about religion or "to infringe" rights of conscience, adding restrictive language of the type later used in the Second Amendment to the exact quote of the restrictive language later used in the First Amendment.

New Hampshire's use of First Amendment type restrictive language to protect a Second Amendment related right is used by the historians to classify it as "unique" and ignore the clear relationship to the Second Amendment's strong protection for the right to keep arms. Failure by the historians to relate New Hampshire's bill of rights related arms proposal, or the prior ones in the Pennsylvania and Massachusetts conventions, to the ongoing political struggle for a federal bill of rights and later development of the Second Amendment is typical for this brief.

Such failure stands in stark contrast to discussion of a period Bill of Rights proposal by Richard Henry Lee in the Confederation Congress (misidentified as the Continental Congress). Professor Rakove's brief singles out Lee's proposed Bill of Rights to further a militia argument and to emphasize that it had no arms provision. That this is the sole mention of a ratification era “Bill of Rights” within the brief is bizarre considering the massive amounts of historical information relating to this subject and the stated intent of the brief to present the history of a U.S. Bill of Rights provision. As in this case of the New Hampshire arms proposal and R.H. Lee's proposed Bill of Rights, the historians' routinely pursue less relevant sources while disassociating clearly Second Amendment related bill of rights provisions rather than associating and connecting them historically to development of the Second Amendment.

This is a further reason why the historians brief is completely unreliable.

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