Monday, April 14, 2014

District of Columbia vs Heller Dissent - Part 5

Justice Stevens' Crashed & Burned American History
      In Parts 1 through 4 of this series, Justice Stevens' erroneous view of well regulated militia language in Founding Era American bill of rights context is documented. The following Heller dissent description and quote of Connecticut's 1782 "Acts and Laws Regulating the Militia" demonstrate Justice Stevens' view of well regulated militia language in early state law context to be a misinterpretation of common Revolutionary Era terminology, contradicting the dissent "state militias" argument yet again.
"The language of the [Second] Amendment's preamble also closely tracks the language of a number of contemporaneous state militia statutes, many of which began with nearly identical statements. . . .
"Whereas the Defence and Security of all free States depends (under God) upon the Exertions of a well regulated Militia, and the Laws heretofore enacted have proved inadequate to the End designed.""
[Heller Dissent, note 6, pp.6-7]
     Since the law mentions "Laws heretofore enacted" regarding "a well regulated Militia," Connecticut clearly had a state militia institution, or state regulated militia, prior to the passage of this 1782 law. However, the prior laws did not result in "a well regulated Militia" because those laws "proved inadequate to the End designed". The end designed was a well regulated militia for defense. Well regulated militia is used in Connecticut's law as a performance dependent description of the militia related to their effectiveness or capability for defense. It is not used as a description of state government authority to institute or regulate the militia, which is Justice Stevens' view of the language.
     If, as Justice Stevens believes, well regulated militia in this law describes a state regulated militia or state militia institution, then the statement in the Connecticut law makes no sense whatsoever. How can there be previous laws establishing and regulating the militia by the state and there not be a state regulated militia or state militia, if that is what well regulated militia signifies? Any establishment or regulation of the militia by state law results in a state militia. Justice Stevens quotes this well regulated militia example to link the period language to his "state militias" view of its meaning. The dissent use of this historical example indicates Justice Stevens fundamentally misunderstands common founding era usage of militia and well regulated militia terminology. Examination of other period sources further clarify this fact.
     George Mason, author of the Second Amendment's 1776 and 1788 predecessors, described the militia in the Virginia Ratifying Convention as follows:
"I ask, Who are the militia. They consist now of the whole people, except a few public officers." [The Origin of the Second Amendment, p.430]
     In The Federalist #29 (first published as #35 in early 1788), Alexander Hamilton suggested what course of action the Federal Government should take under its new militia powers after ratification of the Constitution. Hamilton provides three different descriptions of the militia, all of which represent typical period usage.
"the great body of the yeomanry and of the other classes of the citizens"
"the people at large"
"the whole nation"

[The Origin of the Second Amendment, pp.197-198]
     The above examples indicate that the founders often equated the militia and the people. The following excerpt from the same number of The Federalist clearly combines this period understanding with well regulated militia language used as a typical period performance standard describing the capability of the militia for defense.

"To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions as often as might be necessary, to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss."
[The Origin of the Second Amendment, p.197]
     Hamilton uses well regulated militia as a description of the militia regarding their "degree of perfection" in military exercises relating to defense, a performance standard. This is the same general sense it is used in the Connecticut militia law quoted by Justice Stevens. A performance standard understanding of well regulated militia language in the Connecticut militia law makes sense because "well regulated" relates to the effectiveness of the militia, an inherent character of the militia based on their capability, not to state government authority to establish or regulate the militia.
     Even in state militia law context, where the state government was understood to have regulatory authority over the militia, well regulated militia language was not used to describe that fact. Rather, it was used to describe the militia themselves based on their effectiveness for the "End designed", which was defense.
Regardless of context - whether Federal Bill of Rights related (see Parts 1 and 2), Revolutionary Era state bill of rights related (see Parts 3 and 4), state militia law related, or Federal militia law discussion related (above) - the period sources examined indicate that well regulated militia language was not used to signify state or government regulation of the militia. The only proofs offered by Justice Stevens in the Heller dissent that his view of well regulated militia language is consistent with that of the founders' are his own assertions to that effect. Overt Heller dissent reliance on any and every period well regulated militia reference as support for its argument that the Second Amendment's first clause was intended to protect "state militias" is contradicted by the period evidence. The founders understood the militia to be the people and "well regulated" to simply mean the militia were capable of effective defense.
     Every period source with well regulated militia language quoted in the Heller dissent by Justice Stevens actually contradicts his interpretation of the Second Amendment's first clause because he employs the language contrary to the founders' understanding of it.

[In Part 6, the state bill of rights provisions quoted in the Heller dissent will be examined to further document Justice Stevens' crashed and burned American history.]

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