Thursday, June 18, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 21

Error Based Confusion Reigns In Historians' Heller Amicus Brief

Professor Rakove's brief presented historical material in proper
chronological order with one exception. That exception was
presentations of subsequently adopted right to keep arms proposals
from Virginia and New York that were followed in the brief by
discussion of three earlier proposals protecting the same right. (See
parts 14, 15, and 16 of this series where the Pennsylvania minority,
Massachusetts minority, and New Hampshire Convention proposals
protecting the keeping of arms are examined in proper chronological

This relocation of discussion between the Virginia and Madison's
arms proposals about earlier protections for the right to keep arms
serves two purposes in the brief. Grouping the undeniably private
right protecting earlier proposals together at this point and
distinguishing them from the Virginia/New York proposals, which
combined the right to keep arms with a well regulated militia
reference, helps deemphasize the included right to keep arms
protection while advancing the militia powers only related view of
the historians. A second reason for using the earlier protections as
transition material separating the Virginia proposal from Madison's
version that was based directly upon it is to divert attention away
from the complete inconsistency between Madison's actual language
and the "reserved power of the states" argument that the historians
insist on reading into it.

This is James Madison's Second Amendment predecessor:

“The right of the people to keep and bear arms shall not be infringed;
a well armed and well regulated militia being the best security of a
free country;” [OSA, p.654]

Here is one of the historians' interesting claims about Madison and
his proposal's intent:

Assertion #11
"But as the eventual Tenth Amendment demonstrates, Madison also
intended to rebut Anti-federalist charges of "consolidation" by
affirming the reserved powers of the states and the people, in a
manner akin to the Second Amendment." [p.25]

Fact Checking of Assertion #11
There is more than one factual historical problem buried within this
assertion. First, Madison's Second Amendment predecessor did not
even mention the "states" or "powers". Thus, it is quite clear that
Madison was not using his version of the Second Amendment
with any intention of protecting "reserved powers of the states"
relating to the militia.

Second, James Madison was a Federalist leader and one of the
Framers most responsible for taking powers away from the states
and giving paramount authority over them to a new federal
government in the U.S. Constitution. The historians' bold implication
that somehow Madison had changed his mind and for some strange
reason now intended to assure "reserved powers of the states"
relating to arming the militia is nothing short of preposterous.
What is most interesting is how the historians attribute Madison's
intent to Congressional Second Amendment language not found
anywhere in Madison's actual proposal. He changed Virginia's
"free state" reference to "free country" because his version was
intended to protect against the country's new government while
the language it was taken directly from originally protected against
Virginia's new state government.

The attempt to tie the Tenth Amendment to the Second Amendment
in the brief is without historical foundation because the two
amendments came from such completely different sources. The
Tenth Amendment predecessor was included in Virginia's list of
"other" amendments specifically because it was not developed from
the existing state bills of rights protections. It related to the division
of powers between the federal and state governments and the
people. It did not relate to any specific rights. The contrary was
true for Madison's Second Amendment predecessor. It and the
other protections later incorporated into the first eight
amendments were all included in a “bill of rights” that was
developed from state bill of rights provisions that Madison
understood as protecting rights of the people against abuse by
state governments.

The Second Amendment's well regulated militia reference was, for
example, developed directly from the 1776 Virginia Declaration of
Rights language because that was the verbatim source for the 1788
Virginia Ratifying Convention's proposed Bill of Rights clause.
Madison promised to support those Bill of Rights provisions in
order to achieve ratification of the U.S. Constitution by Virginia.
It was not the historians' proffered militia powers dispute that
brought about the Second Amendment. Instead, it was clearly the
Bill of Rights dispute that resulted in addition, not only of the Second
Amendment, but of the other first eight amendments to the
Constitution as well. [See OSA pp.457-462 for Virginia's proposed
bill of rights and list of other amendments.]

The powers reserved to the states in the Tenth Amendment include
those that are, specifically, "not delegated to the United States by
the Constitution". But power to provide for arming the militia was
delegated to the United States by the Constitution. Thus, if the Tenth
Amendment is anything like the Second Amendment as the historians
claim, neither amendment protects "reserved powers of the states"
over arming the militia because it is not a reserved power of the
states, and there is no period evidence that Madison intended to
make it one.

The Constitution itself does reserve certain militia powers to the
states - specifically officering and training of the militia. The Second
Amendment has nothing more to do with these actual "reserved
powers of the states" over the militia than it does with the powers
not reserved to the states by the Tenth Amendment, such as
arming the militia. It is also clear that the Federalists, who had
super-majorities in both houses of Congress had no reason
whatsoever to alter any of the Article I, Section 8 powers they had
previously partitioned between the federal and state governments
just as they wanted them.

Conclusion - Assertion #11 is Erroneous
Madison had no intention of protecting "reserved powers of the
states" in his Second Amendment predecessor because no such
terminology is found in his proposal. Also, there is nothing similar
about the Second and Tenth Amendments. Their sources and
purposes are separate and distinct. The Second relates to a specific
right that was developed from limitations on state authority
found in the existing state bills of rights, just like the other
provisions in the first eight amendments. The Tenth Amendment
relates to proper construction of the division of powers between
the state and federal governments and the people who gave power
to both. The historians' argument about "reserved powers of the
states" being a purpose of the Second Amendment is just another
clever manifestation of the collective rights argument, which
apparently has a thousand lives and emanations in the hands of gun
control supporters.

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