Friday, January 1, 2010

Historical Points in Chicago's McDonald Brief

Chicago extensively re-argued Heller in its prior McDonald brief opposing Cert. Its new brief has a short historical section where Heller is also re-argued. The thrust of this new argument is that the right of the people to keep and bear arms was only added to the Bill of Rights because of a perceived necessity of protecting the militia. [p.34] This is just another attempt to make the restrictive clause dependent upon the militia clause.

Historically this argument is clearly unfounded. Every provision of the first eight amendments was developed from the existing state bills of rights. Both clauses of the Second Amendment come from that source via the Virginia Ratifying Convention's proposed Bill of Rights.

In Virginia's 1788 proposal, the two-clause Second Amendment predecessor consists of an exact quote of Virginia's 1776 well regulated militia provision [OSA, p.748] preceded by an almost exact quote of Massachusetts' "the people have a right to keep and to bear arms" language. [OSA, p.773] These state bill of rights provisions were understood as limiting the state government and protecting a defensively effective armed population, a concept that is dependent on the fundamental right of individuals to possess and use arms.

All fundamental rights protections taken from the state bills of rights and eventually added to the U.S. Bill of Rights were intended to protect individual rights. Demands for such action igniting the Bill of Rights dispute that raged throughout ratification. The argument that sparked this dispute in the Federal Convention from George Mason, author of Virginia's 1776 bill of rights, was that the new government had authority paramount to state constitutions. State declarations of rights would not protect individual rights against the new government because these rights protecting declarations were part of the state constitutions. A Federal bill of rights was needed as part of the new U.S. Constitution to assure their continued protection against violation by the new government.

As a result of the Federal Convention's refusal to add a bill of rights to the Constitution, Mason notoriously refused to sign the document of which he was a major architect. He even stated in a public speech that he would rather cut off his hand than sign the Constitution, which he described as destructive of the people's rights. The end result was Mason eventually forming what became the model for the U.S. Bill of Rights in Virginia's 1788 Ratifying Convention.

Mason based his proposed 1788 model on his own 1776 Virginia production, and he added provisions from the bills of rights of other states. As an example, Virginia had not protected freedom of speech, which Mason added from Pennsylvania's bill of rights. He also duplicated protections stated in different language. For example, he added Pennsylvania's right of writing and publishing to Virginia's existing freedom of the press language. And he added "the people have a right to keep and to bear arms" from Massachusetts' bill of rights to Virginia's existing Article 13: "a well regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state".[OSA, p.390] This is the origin of the two-clause Second Amendment predecessor, both clauses of which were equal declarations relating to the same fundamental, unalienable rights.

Mason also indicated in the 1788 Virginia Convention, in a bill of rights argument initiated by the reading of articles 8 through 13 of Virginia's bill of rights, that these rights were limits upon legislative authority. [OSA, p.436] If the author of the Second Amendment's predecessor language understood well regulated militia bill of rights language as a limit on state and federal authority, why would anyone want to accept historically unfounded gun control advocate claims to the contrary?

An understanding of Bill of Rights related developmental history makes clear that the gun control advocate view twists this language around from protecting the people against abuse of state and federal authority regarding arms possession and use to authorizing both state and federal abuse of power regarding arms possession and use. Their argument is that government has complete control over all matters relating to anything relating to the term "militia." The problem with their view is that it does not use militia as understood during the ratification period nor does it place the Second Amendment in its proper government limiting Bill of Rights context.


  1. I look forward to you fisking the various historical briefs that have been presented to support Chicago. One wonders if Cornell et al. got their facts straight this time.

  2. I will be examing them shortly.

    Professor Cornell's new brief deals with history after the Civil War, so will not be addressing that because it is well out of my period of study.

    However, several of the same historians involved in the Heller brief are signatories of two other historically oriented briefs addressing the revolutionary and ratification periods. These will be the subject of posts that I am working on now.