Sunday, February 28, 2010

Historians Try to Sell Brooklyn London Benjamin Franklin Bridge to U.S. Supreme Court - Part 5

Contradiction and Error in the Pennsylvania History McDonald Amicus from Professional Historians

In part 4 of the Franklin Bridge series, a second, shorter statement of George Mason that appeared in the middle of the quoted portion of the historians' brief was set aside for later examination here because it was diversionary in nature. The quoted portion is taken from the next to last sentence of Mason's June 14 Virginia Ratifying Convention argument in support of an amendment that would assure the states power over the militia.

"The solution Mason saw was that “divine Providence has given every individual – the means of self-defense” by joining a militia to combat a standing army." [p.25]

Here is Mason's entire statement showing that the quoted portion of Mason's statement was actually the commonly understood analogue removed from an analogy he was making:

"If the [militia] clause [of the Constitution] stands as it is now, it will take from the state legislatures what divine Providence has given to every individual -- the means of self-defence." [The Origin of the Second Amendment, p.402]

The historians present the Mason statement as if it was a "solution" for the problem he discussed in the Virginia Convention militia powers debate. In reality, as seen in part 4, Mason specified the solution as a militia powers amendment, not the Second Amendment predecessor, and the historians completely ignored this fact. They used Mason's analogue as a diversion away from the actual militia powers amendment solution.

Mason understood that, under the new Constitution, the states could be deprived of their means of defense, which was power over the militia, due to the federal government's paramount powers on that subject. To make his argument more clear, he presented a commonly understood point, that every individual possessed the means of self-defense, a reference to the fact that every individual possessed arms for self-defense. Such an analogue would make no sense whatever unless it was widely understood and factually accurate. The historians complete misrepresentation of this Mason quote destroyed Mason's analogy by erroneously making the analogue dependent upon militia membership, something Mason neither stated, implied, nor intended based upon his complete statement.

Turning to internal contradictions, the above Mason quote conflicts with the historians' views. They argue that period discussion was all about the militia and the necessity of the states being guaranteed power over the militia, not about private ownership of arms and related rights. Yet they provide period evidence that contradicts their view. Here are three of their militia-centric statements, all from a single paragraph, which conflict with historical information presented elsewhere in their own brief:

"While the Second Amendment debates focused on the militia, they virtually ignored any right of individuals to defend themselves personally with firearms. . . . The debate was a discussion concerning the militia, nowhere in it is there the slightest hint about a private or individual right to own a weapon. This should not surprise us, for “[i]n all the discussion and debates” over the Second Amendment, “from the Revolution to the eve of the Civil War, there is precious little evidence that advocates of local control of the militia showed an equal or even a secondary concern for gun ownership as a personal right."" [pp.27-28]

Mason's quote, which appeared two pages earlier in the brief and was examined above, conflicts with the historians' opening statement. Mason described the fact that "every individual --[has] the means of self-defence", a clear reference to "every individual" having arms for self-defense.

The historians' statements are contradicted by their quote of Tench Coxe, which appears on the previous page of their brief:

"the people are confirmed in the next article in their right to keep and bear their private arms.” [p.26]

Obviously, if the people are confirmed "in their right to keep and bear their private arms" [OSA, p.671] as Coxe described, then the historians' denial that the debate was about "gun ownership as a personal right" is in direct conflict with this period fact.

Coxe's statement related to the purpose of James Madison's Second Amendment predecessor, which stated:

"Fourthly, that in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit:
. . . .
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, pp.654-655]

Understanding the context of Madison's Second Amendment predecessor is essential for properly understanding Coxe's explanation. It was the fourth of ten articles to be inserted at Madison's specified location in the Constitution. The other nine articles were protections later included in the First, Third, Fourth, Fifth, Sixth, Eight, and Ninth Amendments, all of which relate to private rights. The order of the protections later found in the First, Second, and Third Amendments is exactly the same as originally proposed by Madison. The location specified by Madison for insertion is the only one in the Constitution where individual rights are protected against the federal government. [OSA, p.654-656] Thus, it is clear that Madison treated the Second Amendment predecessor as a typical bill of rights protection for individual rights. This makes perfect sense because he developed these protections from the Virginia proposal for a Bill of Rights, which quoted language taken directly from existing state bills of rights. Coxe's statement describing a right of the people to keep and bear their own "private arms" directly conflicts with the historians' view.

There is also a conflict between the historians' three statements on pp.27-28 of the brief and the argument they present on its following page:

"This suggests that Madison and Congress knew about the "Reasons of Dissent [of the Pennsylvania Minority]," read them, and treated them like a menu, selecting some options and rejecting others, including the individual-oriented gun-right provisions. . . . But Congress decided not to recognize the individual-oriented gun rights in the Dissent, including the right not to be disarmed except in exceptional circumstances and the right to hunt." [pp.28, 29]

Here, the historians state that the arms provision of the Pennsylvania Minority (quoted directly below) protected "individual-oriented gun-right provisions", exactly what they deny was a topic of period Second Amendment related discussion on the previous page of their brief, specifically, the "individual right to own a weapon" and "gun ownership as a personal right." Exactly how individual gun ownership as a personal right gets proposed as a constitutional amendment without any discussion whatsoever is problematic on its face.

This is the Pennsylvania Minority's Second Amendment related proposal:

"That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals". [OSA, p.160]

Not only are the historians' arguments repeatedly contradicted by period sources discussed or quoted in their own brief, but the historical facts prove they are entirely incorrect in their view that period Second Amendment debate was always about the militia and not about gun ownership as a personal right. The exact opposite is the fact. Protection for the people's right to keep arms was offered by Antifederalists in every state ratifying convention where bill of rights provisions were proposed. These included Pennsylvania [OSA, p.151], Massachusetts [OSA, p.260], New Hampshire [OSA, p.446], Virginia [OSA, p.459], New York [OSA, p.481], North Carolina [OSA, p.505], and Rhode Island [OSA, p.735]. Each of these conventions voted on a bill of rights related provision either preventing disarming of the people or protecting the people's right to keep arms, which are equivalent provisions in different words. In each case, these provisions were associated with clearly bill of rights related provisions. [see citations above]

And directly contrary to the mixed up views of these professional historians, in only three of the ratifying conventions did the Antifederalists propose a militia powers amendment, Pennsylvania [OSA, p.151], Virginia [OSA, p.460], and North Carolina [OSA, p.507]. In other words, the historians have everything backwards. The right to keep arms was included in all seven of the ratifying conventions where bill of rights amendments were discussed and proposed, whereas militia powers amendments were proposed in only three conventions. Seven is a lot more than three. The private right to keep arms was actually proposed as an amendment to the Constitution more than twice as often as an alteration of the militia powers. This indicates that the historians continually overlook something that is essential for understanding the Second Amendment. What they have been constantly ignoring is the history of the Second Amendment as a bill of rights provision. It is the extensive and divisive ratification era bill of rights debate they have ignored that directly resulted in development and proposal of Second Amendment related protection by Antifederalists. Professional historians have been prime movers in ripping the Second Amendment out of its actual Bill of Rights history and pasting it into a militia powers debate history that is unrelated.

Rather than the Second Amendment debate being all about the militia, with nary a mention of individual rights relating to private arms ownership, as insisted upon by the historians, the relevant debate was all about adding a Bill of Rights to the Constitution protecting the individual rights already found in the existing state bills of rights, every one of which included a Second Amendment related provision. Every convention voting on bill of rights amendments dealt with the right to keep arms, while less than half of those conventions voted on a militia powers amendment. These facts emphasize the point that the professional historian amici supporting gun control in the McDonald Supreme Court case are not familiar with the period historical sources most relevant for understanding the Second Amendment. This is the primary reason why their opinions are so often in direct conflict with the Founders' views and period facts. The best that can be said for the historians' Second Amendment claims is that they are completely unreliable.

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