Thursday, June 9, 2022

Historical Error In Current Supreme Court Case NYSRPA vs Bruen Pro Rights Brief

Bay Colony Weapons Collectors, Inc. Brief Misstates Availability Of Documentation From The First Congress Concerning The Bill Of Rights

The specific Bay Colony brief error involves the claim that "speeches in the First Congress were not transcribed". This statement immediately precedes discussion regarding James Madison's notes for a speech introducing the U.S. Bill of Rights amendments in the House of Representatives on June 8, 1789.

On the contrary, extensive debate including speeches in the House of Representatives were transcribed and published in 1789. The Gazette of the United States, a period newspaper, published Congressional debates and proceedings in New York where the First Congress met. The Congressional Register was published later that year in New York and contained a collection of such materials transcribed by Thomas Lloyd. These type of period publications were later collected and republished in the Annals of Congress in 1834. Relevant parts were included in a two volume collection edited by Bernard Schwartz entitled, The Bill Of Rights: A Documentary History, published in 1971. Madison's full June 8th amendment proposals were also included in The Papers of James Madison Vol.12, published in 1979.

The Schwartz collection was my source for relevant June 8 excerpts with Madison's full speech published in The Origin of the Second Amendment in 1991. The Bay Colony brief cited The Origin Of The Second Amendment as its source for Madison's June 8th speech notes. The June 8 House debate document begins on the very page Madison's notes for the June 8 speech end (p. 647) beginning with Madison bringing up the subject of the amendments to the Constitution.

Having researched Constitutional Era historical sources for two decades, then edited and self published The Origin of the Second Amendment over three decades ago, a pro rights Supreme Court brief filed in the current Second Amendment related case with such a misstatement regarding the existence of period documents is of serious concern to me. The entire purpose of a collection of relevant Constitutional Era sources like The Origin Of The Second Amendment was to make all of these materials readily available to anyone who needs or wants to study them. I'm pleased the Bay Colony brief cited The Origin of the Second Amendment, and I hope more of those interested in the individual rights nature of the Second Amendment become aware of its existence and make use of the full collection. It is the only one of its kind on the subject.

The Origin of the Second Amendment has been a major help to Federal Courts in discovering and documenting Second Amendment intent. It was extensively cited in the 2001 U.S. vs Emerson decision, which was relied upon for accurate history in the 2007 Parker vs District of Columbia decision, which also cited The Origin of the Second Amendment. The Parker decision was appealed by the District of Columbia to the U.S. Supreme Court as the Heller case that year, and The Origin of the Second Amendment was extensively cited by both sides of the dispute as well as in Justice Scalia's majority Heller opinion. It was the most cited document collection in the case. The fact is that I assisted both the Second Amendment Foundation with historical help for their Emerson case brief, and also Alan Gura in the Heller case. After winning Heller, Alan Gura indicated that The Origin ofthe Second Amendment and my companion narrative history, The Founders' View of the Right to Bear Arms, were "the authoritative books on the subject" of "the Second Amendment's history".

Note that the Bay Colony brief makes excellent use of Madison's notes, and does so in an expeditious manner for the particular argument and setting. It was not the purpose of the brief to go extensively into what Madison actually did and said that day. However, the mistaken claim regarding lack of transcriptions of speeches in Congress is a type of error that should not appear in any brief before the Supreme Court, and especially so within a pro rights brief filed in a Second Amendment related case.

James Madison's speech on June 8th, 1789 introducing the Bill of Rights amendments is available for everyone to read. It includes dispositive points on Second Amendment intent that have been the subject of dispute for decades. Some of these points cannot be determined from his notes alone. What are these points? That subject will be addressed in a following post.

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