Thursday, May 1, 2014
Justice Stevens' Mangled Beyond Recognition American History
Not only does Justice Stevens erroneously rely on well regulated militia language provisions as if they back up his Heller dissent argument that the Second Amendment protects state power over the militia, (see Parts 1, 2, 3, 4 and 5) he also relies on other founding era provisions that were always linked with Second Amendment predecessors. The seminal example of such linkage is Article 13 of Virginia's 1776 Declaration of Rights, the first clause of which was examined in Part 3:
"That 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; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power." [The Origin of the Second Amendment, pp.748-749]
Article 13, written by George Mason, consists of three distinct parts. The first is a Second Amendment predecessor protecting an armed populace capable of effective defense, the second part protecting against peacetime standing armies that endanger liberty, and the third part declaring government raised forces (the military) subordinate to the "civil power".
Justice Stevens reliance on the second and third parts of Virginia's Article 13 triad of protections (Mason Triad) to support his "state militias" protecting Second Amendment intent argument is just as illogical as his reliance on its well regulated militia clause due to direct conflict with the understanding of the provisions' framers. They used the language of all three Mason Triad parts to limit the state government. As documented in Part 3, George Mason and Patrick Henry, respectively, when speaking on June 16, 1788 in the Virginia Ratifying Convention, described Article 13 of Virginia's 1776 Declaration of Rights as a provision "which the people, by their bill of rights, declared to be paramount to the power of the legislature", the intent of which was to defend "against the state government". [The Origin of the Second Amendment, pp.436, 437]
Heller dissent usage demonstrates that Justice Stevens is oblivious to the fact that all three parts of Virginia's Mason Triad are intended as limits on state power, thus, directly conflicting with his state power protecting argument. The Heller dissent not only relies on Virginia's Article 13 Mason Triad as if it supports Justice Stevens' argument, it also relies on Mason Triads with leading well regulated militia provisions adopted by three other states, Delaware, Maryland, and New Hampshire. The full Mason Triads of all four states are quoted in footnote 5 starting on page 5 of the Heller dissent.
Each of these subsequently adopted Mason Triads varied the language of Mason's Virginia original somewhat. They all dropped the duplicative description of the militia (the body of the people), added an exception of legislative authorization to the second part, and added "at all times" to the limitations on the state in the final subordination of the government's military forces part.
As an example, Delaware's 1776 Mason Triad, the first after Virginia's to adopt well regulated militia language, stated:
"Sect. 18. That a well regulated militia is the proper, natural and safe defence of a free government.
Sect. 19. That standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the Legislature.
Sect. 20. That in all cases and at all times the military ought to be under strict subordination to and governed by the civil power."
[The Origin of the Second Amendment, p.752]
Justice Stevens' reliance on these other well regulated militia protecting Mason Triads, just as Virginia's original, is entirely illogical because they were all intended and understood as limits on their state governments, not as descriptions of, guarantees to, or protections for state power.
All of the eight early states that adopted declarations of rights also indicated they were either a part of the state constitution or a limitation on legislative power, excepting only Virginia's, the first formed. Some of the other states specified both points within their constitutions. In Virginia's case, the period framers later indicated that its declaration of rights was part of the constitution and understood as a limit on state power.
New Hampshire's "Bill of Rights" was "Part I" of its constitution, and "The Form of Government" was "Part II". State constitutions are binding on state governments just as they are upon the people who authorize them. New Hampshire's constitution additionally specified a limitation on the state government relative to rights and privileges contained within it, a provision very similar to the Delaware provision quoted directly below. [F. N. Thorpe, Federal and State Constitutions, Vol. 6, pp.2453, 2458, 2469]
Delaware's 1776 State Constitution, Article 25, specifically limited the legislature relative to the declaration of rights as follows:
"The common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution, and the declaration of rights, &c., agreed to by this convention."
[Thorpe, Vol. 1, pp.566-567]
Maryland's Declaration of Rights, Article XLII, limited the legislative branch as follows:
"That this Declaration of Rights, or the Form of Government, to be established by this Convention, or any part or either of them, ought not to be altered, changed or abolished, by the Legislature of this State, but in such manner as this Convention shall prescribe and direct." [The Origin of the Second Amendment, p.761]
The above sources indicate that all four of the Mason Triads quoted in note 5 of the Heller dissent were intended as limitations on their respective state governments, not as descriptions of state power over military matters. They were constitutional level restraints on state power that directly contradict the use made of them by Justice Stevens.
Once again, Justice Stevens is documented using period sources as support for his Heller dissent argument that, to the contrary, directly refute his interpretation of the Second Amendment and its immediate predecessors. His constant reliance on period sources that undermine the Heller dissent argument is an intellectual embarrassment of the first order. All of the period evidence that Justice Stevens quotes in Heller, when examined carefully and compared to the understanding of the founders, disproves his argument the Second Amendment was intended to protect state militia power because he completely ignores American historical reality and the founders' period usage.
The fact is that each of the eight state bills of rights developed during the Revolutionary Era had its own Mason Triad protecting the same three concepts as Virginia's Article 13, and all were intended to protect against violation by state government. Each included a leading Second Amendment predecessor, a limitation on peacetime standing armies that endanger liberty, and ended with a provision subordinating government raised force to the civil power.
[Mason Triads were first identified in The Founders' View of the Right to Bear Arms. They are available online in appendices of The American Revolutionary Era Origin of the Second Amendment's Clauses, which was published in the 2011 issue of The Journal on Firearms and Public Policy.]
Mason Triads, with their leading state bill of rights Second Amendment predecessors, limited state governments at the constitutional level. They protected the people by assuring an armed population capable of defense, checked peacetime standing armies, and guaranteed any forces raised by state governments were, both in law and in reality, subordinate to the the very people who authorized the government through their state constitution.
[In the next part, the four other Revolutionary Era Mason Triads will be examined, further demonstrating Justice Stevens Heller dissent to be mangled beyond recognition American History.]