Sunday, January 17, 2010

Historians Try to Sell Brooklyn London Bridge to U.S. Supreme Court - Part 1

Errors, Contradictions, Misquotes, and Omissions in the Professional Historians' McDonald Amicus Brief
[Updated January 20 & 24, 2010]
[This series will address historical problems in the English/Early American historians' McDonald amicus brief filed with the U.S. Supreme Court in support of Chicago's gun control laws. Six of the twenty-one historians involved in this brief were also involved in the historians' 2008 brief supporting Washington DC in the Heller case. For those unfamiliar with this blog, there is a 24 part series starting on January 25, 2009, entitled Root Causes of Never-Ending Second Amendment Dispute (below) addressing and documenting the astonishing number of errors that appeared in that earlier historians' Heller brief. Six of those same historians are back now offering the Court another dose of factually incorrect statements and off-track American history.]

There are major historical problems with the brief supporting Chicago filed by the English/Early American historians in the McDonald Second Amendment incorporation case now before the U.S. Supreme Court. Most of the brief relates to English history and development of the 1689 English Bill of Rights arms provision. The second major part deals with arguments based on Blackstone's Commentaries on the Laws of England, which was published in the late 1760's prior to the American Revolution. Neither of these older historical sources can inform regarding Americans' subsequent establishment of written constitutions with power limiting bills of rights, things unknown in British law and not even mentioned in Blackstone. A following section of the brief attempts to link American revolutionary era statements about self-preservation and defense to Blackstone's description of the English arms provision. The final part of the brief contains numerous errors, contradictions, and omissions of relevant information in its attempts to link the Second Amendment's purpose to the concept protected in the English Bill of Rights and its language to that found in British militia laws. Largely diversionary in nature, the historians focus attention on earlier and largely unrelated historical information while diverting entirely away from American historical development of government limiting bills of rights, which are directly related to the Second Amendment's language and intent.

The arms provision found in the 1689 English Bill of Rights stated:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law. [OSA, p.783]

The 1789 proposed Article IV amendment adopted as the Second Amendment to the U.S. Constitution in 1791:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. [OSA, p. 744]

The historians' brief makes this assertion regarding the purpose of these provisions on page 35:

"The only difference between the English "have arms" provision and the Second Amendment is that the Second Amendment right is not dependent on privileges of wealth or birth."

This assertion is not only factually incorrect, it is entirely inane. There are only four words common to both provisions (to, the, and, arms), and only one of them is a noun. The English provision does not mention any right whatsoever, a difference. Also, the Second Amendment right is not dependent on religion, another difference. Americans are not subjects of a monarch, an additional difference. And the very reason why the American right is protected in the Constitution as part of the supreme law of the land is so it is not dependent upon laws allowing for its exercise, a most important difference. A number of other points could be listed here, but let it be remembered that this entire brief diverts away from the relevant American bill of rights related history that the Court should be examining. In the prior Heller case, the Court did not examine this most relevant American history, which is found in a source cited a number of times in Heller briefs, and as a result, the decision did not correct the major historical error in Justice Stevens' dissent, an error provided to the Court by six of the historians involved in this McDonald brief.

The historians' McDonald brief inaccurately refers to the English provision as the "right" to have arms many times, significantly more than use of accurate terms such as "allowance" or "provision." This indicates that these historians do not understand the basic difference between the English and American bills of rights. James Madison indicated that comparisons of the English and American bills of rights (exactly what the historians engage in here regarding one provision) were "inapplicable" because their purposes were so different. This was the main point of Madison's discussion about the English Bill of Rights during his 1789 speech to Congress introducing the Bill of Rights amendments. In explaining why "there is too great a difference in the case to warrant the comparison", Madison stated:

"In the declaration of rights which that country [Great Britain] has established, the truth is they have gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite. . . .But although the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many States have thought it necessary to raise barriers against power in all forms and departments of Government," [OSA, p.656, 657]

Thus, contrary to the historians' McDonald brief assertion that the only difference involved was class or condition, virtually every aspect of the arms statements in the English and U.S. Bills of Rights is different other than the noun "arms" itself. That difference was well understood and emphasized in 1789 by Madison, who not only was the direct author of the Second Amendment's power limiting restrictive clause language, but was involved in preparing and authorizing the very first American state bill of rights, that of Virginia in 1776. Madison's statements regarding these matters are definitive because he was involved in the very genesis of American bills of rights at both the state and federal levels.

Continuing with errors in the historians' McDonald brief, on page 38 they assert the following in reference to the revolutionary period:

"the phrases "bear arms" and "keep arms" are found only in state militia laws of the era."

However, in the previous sentence of the brief they present a period document directly contradicting this claim. There, they quote the Massachusetts Declaration of Rights in a statement about:

"Discussing the 1780 Massachusetts Constitution provision protecting the "right of the people to keep and bear arms for the common defence".

First, note that the historians fail to specify their quote is from the Massachusetts Declaration of Rights. That Declaration of Rights most assuredly protected the people's right to "bear arms", but it was also most assuredly not a state militia law. Three other state bills of rights protected the right to "bear arms" as well (Pennsylvania, North Carolina, and Vermont), but none of those provisions were state militia laws either. Thus, the brief's statement about "bear arms" only being found in state militia laws of the era is another factually incorrect assertion by the historians. A number of state bill of rights provisions contained that language, and the American history entirely ignored by these historians directly links those very arms related provisions to later predecessors of the Second Amendment. In short, this brief omits the most relevant historical information for understanding the Second Amendment's purpose.

Also note that the historians' brief misquotes the Massachusetts Bill of Rights provision, which actually stated:

"XVII. The people have a right to keep and to bear arms for the common defence." [OSA p.773]

The historians garbled together the wording of the Second Amendment and that of the 1780 Massachusetts Bill of Rights provision in their quotation of the latter. But wait, there's more. That is not the only misquote within this sentence. The historians go on after "common defence" discussing use of related language in a state law as follows:

"the Massachusetts legislature stated that the right to "keep and bear arms," was a right necessary for the safety of the state".

Actually, the legislature used only "bear arms" in this preamble to a bill relating to tumults and insurrections. The preamble stated:

"Whereas in a free government, where the people have a right to bear arms for the common defence, and the military power is held in subordination to the civil authority, it is necessary for the safety of the State that the virtuous citizens thereof should hold themselves in readiness, and when called upon, should exert their efforts to support the civil government, and oppose the attempts of the factious and wicked men who may wish to subvert the laws and Constitution of their country". [Source: go to page 366]

Not only do the historians replace "bear arms" with "keep and bear arms" in this misquote, they also attribute the safety of the state directly to the right to bear arms for the common defense, when in fact, the document they quote attributes it to the citizens who should exert their efforts to support the civil government when called upon.

Thus, just on page 38 of the English/Early American historians' McDonald amicus brief alone there are at least two misquotes of period sources, one misattribution, and two factually incorrect statements, with the last of the latter providing direct evidence of significant omission of relevant period sources. The "bear arms" language that the historians assert was only found in period militia laws was in fact found in a state bill of rights arms provision they quote, and it is also found in a number of other period American bill of rights arms related provisions. The historians are clearly ignoring state bill of rights provisions that are much more relevant for understanding the Second Amendment's purpose while instead advancing pre-revolutionary English sources that are largely irrelevant. The alternative to their ignoring this relevant information is they haven't got a clue to begin with, an unlikely prospect. These facts, errors, and omissions indicate that the historians are not reliable sources of information for the Court's fresh examination of the "origins of the Second Amendment" that the brief advises "to properly decide the question presented" in McDonald. [p.6]


  1. Mr. Young,

    Your understanding of English history, its impact on the American Bill of Rights, and its significance for this litigation is seriously misplaced. The English history is significant for two reasons. First, in order for a right to be incorporated through the Fourteenth Amendment’s Due Process Clause the right must be deeply rooted in the Anglo-American tradition. Second, as the Supreme Court held in Heller, the right to “keep and bear arms” was the precursor to the Second Amendment.

    I find it interesting that you disassociate Blackstone and the English “have arms” provision from the Second Amendment when every early constitutional commentator linked the two. Even St. George Tucker commented that the two were linked and only different because the Second Amendment was not limited as being suitable to their condition or degree. Not to mention, every brief in support of the Petitioners cites Blackstone’s right of “self-preservation and resistance” as characterizing the protection the Second Amendment affords.

    Also, you fail to address how the Founding Fathers characterized their rebellion as similar to and based upon similar justifications as the 1642 English Civil War and the 1688-89 Glorious Revolution. The Founders rebelled against England in hopes of restoring their English liberties. This is repeated over and over in their writings. Of course the Founders made improvements to these liberties, but they are the basis of the rights instilled in the Constitution. You didn’t get that memo? (See St. George Tucker above)

    To be continued in next post...

  2. After your mischaracterization of English history and its impact on the Founding Fathers (See the award winning book by Pauline Maier entitled American Scripture to correct yourself), you attempt to “lawyer” the linguistic differences between the “have arms” provision and the Second Amendment . Are you serious? You are going against every authority on this subject which linked the two protections and Blackstone’s definition of the fifth auxiliary right.

    Regarding your discussion of the phrases “bear arms” and “keep arms,” the fact of the matter is the language was highly visible in state/colony militia laws. The historians are not saying they did not also appear in state constitutions. The historians illustrate that in citing the Massachusetts Constitution. What the historians are getting at is the fact that “bear arms” and “keep arms” was legal language use primarily in militia laws, thus, showing that a constitutional provision did not need to state “militia” to understand what “keep arms” and “bear arms” meant.

    You seem to be implying Pennsylvania’s constitution using the phrase “defence of themselves and the state” shows that it was a right to own arms to protect your person. However, did you know that “defence of themselves” was often language used in English writings describing lawful resistance or rebellion through a militia force authorized by Parliament? Again, one did not need to include the word “militia” to understand what “keep and bear arms” meant to the Founding generation. Please provide me with one law that was passed and in effect that used “bear arms” other than militia laws? (if you cite the Heller Delaware law it does not use “bear arms”) In short, what you are missing is that the Founders understood the legal framework and legal language better than anyone. You think they were not aware how “keep arms” and “bear arms” was used in their respective statutes?

    Lastly, you take most of your time pointing out quotation errors, etc. Regarding your book the Founders View of the Right to Bear Arms, which I own, can you tell me why many cites do not correspond with the end notes? Can you tell me why footnotes skip numbers? Can you tell me why your end notes abruptly end and you leave the reader with no citations of authority to back up your assertions? In other words, you seem to throw stones at the lawyers that wrote the brief, but fail to note how your own work are full of grammatical and citation errors.

  3. Mr. Young:

    Well said.

    Only a person whose principal knowledge of American history is derived from law review articles could believe that the right to keep & bear arms is not very personal to the citizen & a fundamental inicident of the liberty the Constitution was written to guarantee.

  4. Answers to Questions from Thomas:

    Q: Can you tell me why footnotes skip numbers?

    A: Two types of footnotes are found in the text of The Founders' View of the Right to Bear Arms as explained in the third paragraph of the Preface and at the start of the Documentation and Short Title List immediately preceeding the Notes listing. There are 225 consecutively numbered endnotes and approximately 435 notes with a preceeding square mark indicating they are direct page references to documents in the ratification era source collection, The Origin of the Second Amendment. A note indicator of 116 in the text refers to note 116 in the notes list, while a note indicator of 498 preceeded by a square symbol directly indicates the document is on page 498 in The Origin of the Second Amendment source collection.

    Q. [C]an you tell me why many cites do not correspond with the end notes?

    A: The final five footnotes in the text are misnumbered by 1. Starting with the second appearance of footnote 220 on page 212, adding one to the note in the text makes it correspond to the correct note in the Notes list. Each individual copy of The Founders' View of the Right to Bear Arms and The Origin of the Second Amendment shipped by Golden Oak Books includes a separate errata sheet among the order papers containing corrections for any printing errors.

    An online copy of the errata sheet containing corrections for printing errors in the first edition of The Founders' View of the Right to Bear Arms can be obtained at this URL:'%20View/errata/index.html

    An online copy of the errata sheet for various editions and printings of The Origin of the Second Amendment can be found at this URL:

    Q: Can you tell me why your end notes abruptly end and you leave the reader with no citations of authority to back up your assertions?

    A: The consecutively numbered footnotes end at 225, but there are approximately 435 other notes indicating specific page numbers in the primary document source, The Origin of the Second Amendment. Readers are provided citations to specified period sources for each of the approximately 660 noted facts stated in The Founders' View of the Right to Bear Arms.