Second Amendment History Online - Zachariah Johnson's Federalist Arms Mantra

The People are Not to be Disarmed of Their Weapons

[Zachariah Johnson was a Federalist member of the 1788 Virginia Ratifying Convention, which adopted a proposed bill of rights and list of other amendments to the Constitution after its ratification. Antifederalists, led by George Mason, had actually prepared the bill of rights and list of other amendments. Virginia Federalists managed to achieve ratification of the Constitution by agreeing to send all of the proposals on to the new Federal Congress for consideration and promising to support the bill of rights protections. Johnson's Federalist Arms Mantra was part of a speech to convention delegates on June 25, 1788. On the previous day, Patrick Henry had introduced what became the model for the U.S. Bill of Rights that contained the original two-clause Second Amendment predecessor.

    In this particular instance, the armed populace argument was deployed by Johnson to counteract fears that the Federal Government would have power to make a religious establishment. Note also, as in all period arms mantras, the people's weapons that Johnson referred to included the common single shot flintlock arms and bayonets of the period, exactly what soldiers employed by the government would be armed with.]

"The diversity of opinions and variety of sects in the United States have justly been reckoned a great security with respect to religious liberty. The difficulty of establishing a uniformity of religion in this country is immense. The extent of the country is very great. The multiplicity of sects is very great likewise. The people are not to be disarmed of their weapons. They are left in full possession of them. The government is administered by the representatives of the people voluntarily and freely chosen.

    Under these circumstances, should any one attempt to establish their own system, in prejudice of the rest, they would be universally detested and opposed, and easily frustrated. This is a principle which secures religious liberty most firmly. The government will depend on the assistance of the people in the day of distress. This is the case in all governments. It never was otherwise." [The Origin of the Second Amendment, p. 452]

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.

Historians Try to Sell Brooklyn London Benjamin Franklin Bridge to U.S. Supreme Court - Part 4

Conflation , Contradiction and Error in the Pennsylvania History McDonald Amicus from Professional Historians
[Updated February 20 & 26, 2010]
To the historians, the extensive ratification era arguments about militia powers and the need to amend them are viewed as proof that the Second Amendment resulted from those very arguments because the term "militia" appears in it. The following statement from the historians' brief indicates this general view:

"The Second Amendment came out of a debate about the purpose and control of militias." [p.23]

The above statement is false, as demonstrated in the following analysis, because the Second Amendment actually came out of the ratification era demands for a federal bill of rights consisting of existing state bill of rights protections. The following series of statements from the historians contain embedded quotes of two major Founders, George Mason and Patrick Henry, spoken in the 1788 Virginia Ratifying Convention. The historians thoroughly conflate Antifederalist desire for a militia powers amendment with the separate and distinct desire for Second Amendment related bill of rights protection in their use of these Founders' quotes.

""Mason warned of central governments’ penchant for disarming the people:

"An instance within the memory of some of this house will show us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British government was advised by an artful man [Sir George Keith], who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting 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. Id. 380–81. Patrick Henry argued that “You have a bill of rights [in Virginia] to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power!” Id. 146. He sought to replicate at the federal level the state constitutional provisions allowing the people to protect themselves against government. The right of revolution was still foremost in his mind." [pp.25-26]
[The Id. 146 reference above from the brief is in error. It should read 446. DY]
The historical problem in the above amalgam of quotes is conflation of Mason militia powers debate quotes that are not directly Second Amendment related to a Henry bill of rights quote from two days later during bill of rights debate that is directly related to the Second Amendment. Mason's quotes are from June 14 debate on the Article 1, Section 8 militia powers. Mason stated the solution for his concerns by specifying the amendment he wanted. The "solution" that the historians read into Mason's second remark is diversionary and misleading, thus, it is discussed in a later post. Found within the same paragraph along with Mason's first quote is the solution to the problem he is describing, which the historians completely ignore:

"I wish that, in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them. With this single exception, I would agree to this part, as I am conscious the government ought to have the power." [The Origin of the Second Amendment, p.402]

Mason, chairman of the Antifederalist amendments committee, was the author of the Virginia Ratifying Convention's proposed Bill of Rights as well as a list of 20 "other" non-bill of rights amendment proposals. [OSA, pp.457-462] Compare Mason's stated amendment solution above to Virginia's proposed "other" amendment #11, which is also ignored by the historians:

"11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect ro provide for the same." [OSA, p.460]

This is the proposed amendment that directly results from the militia powers debate Mason's quote is extracted from. His stated amendment solution in the same paragraph as his quote is presented in virtually the same words as proposed amendment #11, which he wrote. Also, Mason clearly indicated this was the only amendment Antifederalists sought regarding the Article 1, Section 8 militia powers. Thus, the Second Amendment was not the solution Mason was seeking, nor could it possibly have been the result of that or any other day's militia powers arguments from the Virginia Ratifying Convention. The historians view that the Second Amendment "came out of a debate about the purpose and control of militias" is false because the period sources they ignore conclusively prove that the Second Amendment was not the solution sought by Mason, and that the actual solution, proposed amendment #11, was the only one sought by the Virginia Antifederalists relating to the Constitution's militia powers. The period evidence conclusively indicates that the Mason quote provided by the historians is not directly related to the Second Amendment.

Patrick Henry's quote from two days later, on the other hand, is directly related to the future Second Amendment. It not only directly dealt with the bill of rights issue, but Second Amendment predecessor language from the state bill of rights was also specifically introduced in the Virginia Convention in relation to it. Shortly before making the statement quoted by the historians, Henry initiated discussion about the need for a federal bill of rights on June 16 by having the 8th through 13th articles of Virginia's declaration of rights read. [OSA, p.434] These particular protections against state violation of the people's rights were later incorporated as the first eight amendments of the U.S. Bill of Rights (excepting the 3rd). [OSA, pp.743-746] This is the 13th article from Virginia's 1776 bill of rights:

"13. 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." [OSA, p.434]

Virginia' 1776 provision is the original state bill of rights progenitor of the Second Amendment's first clause. It was adopted verbatim, with added bill of rights protection from other states, by the 1788 Virginia Ratifying Convention as part of its proposed bill of rights. Here is Virginia's proposed Bill of Rights Article 17:

"17th. That the people have a right to keep and bear arms; 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, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power." [OSA, p.459]

This 1788 Virginia proposal is the original two-clause ratification era progenitor of the Second Amendment. James Madison not only voted for the above Virginia Ratifying Convention proposal, he promised to actually support the Second Amendment related parts of it along with all of the other individual rights protections in the proposed bill of rights from Virginia, and he directly relied upon it in drawing up his version of what became the Second Amendment. Madison's 1789 version of the above as presented to Congress stated:

"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]

For comparison, this is the Second Amendment as passed by Congress and ratified by the states:

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bar arms shall not be infringed." [OSA, p.744]

To the historians, the Second Amendment was all about the militia, not about individual rights to possess arms, and it resulted from ratification era militia powers arguments. Period sources prove their use of militia powers arguments as relating to the Second Amendment are erroneous because they conflate largely unrelated arguments as well as an entirely unrelated amendment with the Second Amendment. That the Second Amendment is a bill of rights provision taken directly from state bills of rights provisions is what the period sources clearly show. These facts cannot be determined from the confusing information presented by the historians in their brief. They can only be determined by examining essential information the historians have ignored, such as Mason's militia powers amendment solution to the problem he was describing, and the resulting militia powers amendment he produced to solve that problem.

The historians constantly pursue a militia powers nexus throughout their brief while always downplaying the much more relevant bill of rights related history of the Second Amendment. Their attempted link of the two different subjects in the above amalgam of Mason and Henry quotes results in error due to conflation of unrelated militia powers and bill of rights arguments and solutions.

Because of such errors, the professional historians' amicus brief supporting Chicago's gun control laws in the McDonald case cannot be relied upon for factual information about the Second Amendment's history or intent.

A Thoughful Bill of Rights Day to Everyone

Updated December 16, 2009
On this 218th ratification anniversary of the U.S. Bill of Rights, the first ten amendments to our Constitution, here are some thoughts on the novel development in America of limits upon government authority, especially legislative authority.

The English Bill of Rights had already established the concept of limits upon executive authority, but not upon the legislative branch specifically or the government as a whole. It took the American Revolution to bring about declarations of rights with the intent of restrictions on legislative supremacy and the government in general. The people in seven of the original 13 states plus Vermont developed declarations of rights to their state constitutions during the contest with Great Britain. These declarations contained lists of the republican principles and unalienable, fundamental rights that our forefathers understood their new free governments to be founded upon, without which they could not long exist, and to which they were expected to conform.

After defending their newly established state governments united under the defensively oriented Articles of Confederation, a new Constitution was formed in the summer of 1787 by the Federal Convention in Philadelphia. Americans should ever be grateful that the vast majority of those present at the convention rejected George Mason's suggestion for a committee to draw up a bill of rights. Such a bill of rights would have been developed behind closed doors without extensive public discussion of its purpose and meaning. Such an action would have resulted in every aspect of every protection it contained being subject to never-ending dispute as to whether or not it was intended to limit legislative authority and to what extent.

As a result of that refusal, a major political dispute erupted during ratification over the need for a bill of rights as part of the proposed U.S. Constitution. Extensive arguments concerning that subject and the sources and purposes for such a bill of rights appeared in the newspapers, pamphlets, broadsides, and private correspondence of the period. This public dispute divided the country, producing Federalist opponents and Antifederalist proponents for a list of fundamental, inalienable rights to be constitutionally protected as part of the new form of government. The bill of rights dispute was divisive and intense, almost resulting in defeat of the proffered form of government. Early on, Federalists summarily rejected bill of rights proposals in Pennsylvania, Massachusetts, and Maryland, states where the argument was raised and they were in the majority.

In later conventions the Antifederalists prevailed in their arguments for bill of rights protections as proposed amendments to the Constitution. The acceptance of such proposals to guarantee each citizen's right to keep arms, freedom of religion, and prevent all peacetime quartering of soldiers without owner's consent in New Hampshire's convention brought about acceptance by the ninth state and a certainty that the Constitution would be carried into effect. However, this fact was unknown in the Virginia Ratifying Convention. There, in order to assure ratification by at least nine states, the Federalists, led by James Madison, agreed to pass a bill of rights and extensive list of other proposed amendments on to Congress for its consideration in order to achieve ratification. Madison promised to subsequently support the bill of rights proposals he understood as relating to individual rights, including the right of the people to keep and bear arms, and he carried out that promise after being elected to the House of Representatives in 1789.

While the intent and extent of bill of rights provisions, especially the Second Amendment, are often called into question in spite of the open public debate about the bill of rights during ratification, at least there is extensive documentation of the arguments and actions that led to development and adoption of the bill of rights provisions. It is most unfortunate that those who engage in modern discussion concerning such provisions are often completely unfamiliar with the period sources.

If the past is any guide to the future, that Americans will freely enjoy the rights protected by the U.S. Bill of Rights is seriously in doubt unless they remain eternally vigilant. In the case of the Second Amendment, the right to keep and bear arms has not only been violated and ignored, but its purpose actually denied by those interested more in control than liberty. There is little doubt that almost every provision of the Bill of Rights (with the possible exception of the Third Amendment) has either been openly violated or the intent evaded by subterfuge at one time or another.

The refuge for expectation that Americans will enjoy in the future those rights that their ancestors bled and died to pass on to them, protected in a Bill of Rights as part of the supreme law of the land, is a clear understanding of those rights, the resolve to insist that they be observed in every instance, and the ability to defend them in the last resort if all three branches of government basely neglect their primary duty as stated in the oath of office - to uphold the Constitution.

Root Causes of Never-ending Second Amendment Dispute - Part 24

Ignored Facts, Unfounded Assertions, and the Historians' Heller Amicus Brief

James Madison's Second Amendment related proposal with attached conscientious objector clause as presented to Congress in June, 1789:

"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; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." [OSA, pp.654-655]

The historians make these three assertions regarding Madison's proposal:

Assertions #14, 15, and 16
"The final clause was derived from a similar provision recommended by the Maryland Convention. Id. at 181. Its presence confirms that the principal subject was the militia. That clause was also the sole subject of recorded House debate on the entire article." [pp.27-28]

Fact Checking of Assertion #14
Contrary to the historians' assertion, the Maryland Convention recommended no amendments to the Constitution. After ratification by a vote of 63 to 11, the Maryland Convention established a committee to consider possible amendments. This committee approved 13 and rejected 15 minority proposals. The conscientious objector clause was one of those rejected by the committee. The committee could not agree on a final course of action and failed to make any report of amendments. Without a report from the committee, the Convention took no action on any proposals of amendment, even those adopted by the committee. The source cited in the brief specified nothing about the provision being recommended by the Maryland Convention and indicated only that it was a minority proposal. [See The Origin of the Second Amendment, pp.356-361, for details from the Maryland minority about their amendment proposals.]

The Second Amendment clauses in Madison's proposal were clearly taken from the 17th provision in the Virginia Ratifying Convention's proposed Bill of Rights. The 19th provision of that same Bill of Rights was a conscientious objector clause. [FVRBA, p.192] To claim that Madison specifically based his proposal on what was actually a committee rejected proposition never adopted by the Maryland Convention, which recommended no amendments, while ignoring the proposal on the same subject in the Bill of Rights he promised to support and that he actually voted for in order to achieve ratification by Virginia is inane. One has to wonder whether the historians are just not very familiar with ratification era Bill of Rights sources or are simply trying to divert attention again to avoid mentioning that Madison's Second Amendment predecessor and its attached conscientious objector clause both came from Virginia's proposed Bill of Rights, which they have never mentioned the existence of.

Fact Checking of Assertion #15
In the historians' use of the term "militia," government authorization and control are a given, even in bill of rights provisions. Thus, their statement that the conscientious objector clause language Madison added to the Second Amendment clauses "confirms that the principal subject was the militia" completely ignores the purpose for bill of rights provisions - to protect specific rights against government abuse. Also, the term "militia" is not even found in Madison's conscientious objector clause. His objector clause was clearly intended as protection for individuals with religious convictions as an exception from government military power. The Second Amendment clauses were intended as protections for rights that were exceptions to government powers. All of the proposed protections later adopted in the first eight amendments, which were state bill of rights derivatives, protected rights against abuse of the powers given to government. The historians' implication of intended government military control over any of the protections Madison grouped together in this proposal are misplaced because neither the Second Amendment clauses nor the conscientious objector clause were intended to give any level of government power over the militia. Madison treated them only as protections for private rights against government power, and that is exactly how his contemporaries understood them also.

Fact Checking of Assertion #16
The final assertion that the conscientious objector clause was "the sole subject of recorded House debate on the entire article" is a fallacious argument that implies discussion about the objector clause can be taken as applying to the Second Amendment predecessor clauses. The objector clause was later deleted by the Senate after it had engendered numerous and contentious arguments in the House. And contrary to the historians assertion, there were statements made in the House that clearly related to the Second Amendment predecessor. Congressman Scott (PA) indicated that the conscientious objector clause would force the government to rely on a standing army, and that such reliance would eventually lead to violation of "another article" in the Constitution that specifically protected the people's "right of keeping arms." [FVRBA, p.194, OSA, p.703]

Congressman Benson (NY) wanted the conscientious objector clause deleted. He stated:
"It is extremely injudicious to intermix matters of doubt [the objector clause] with fundamentals." [OSA, p.697]
Obviously, he considered the Second Amendment predecessor among the fundamentals.

Conclusion - Assertions #14, 15, and 16 are all Erroneous
Contrary to the historians' assertions:

#14 - Madison could not have derived language for a conscientious objector clause from an amendment recommended by the Maryland Convention because that convention did not recommend any amendments to the Constitution, and a proposed conscientious objector clause was rejected in a committee.

#15 - Madison's conscientious objector clause tacked on to his Second Amendment predecessor did not confirm that the principal subject of either was the militia rather than protection of individual rights. It did not even mention the militia and was clearly a protection for private rights.

#16 - Discussion concerning the conscientious objector clause was not "the sole subject of recorded House debate on the entire article" claimed by the historians in their brief as demonstrated by Congressman Scott's comments on the right of the people to keep arms.

These errors of fact, taken along with a number previously addressed and documented, indicate that none of the signatories to the professional academic historians' Heller amicus brief are overly familiar with period Bill of Rights developmental sources. The cumulative effect of all these erroneous statements is to demonstrate that any statement in the brief regarding Second Amendment intent is unreliable and likely to be completely erroneous because it is founded on numerous errors of fact.

Root Causes of Never-ending Second Amendment Dispute - Part 21

Error Based Confusion Reigns In Historians' Heller Amicus Brief

Professor Rakove's brief presented historical material in proper
chronological order with one exception. That exception was
presentations of subsequently adopted right to keep arms proposals
from Virginia and New York that were followed in the brief by
discussion of three earlier proposals protecting the same right. (See
parts 14, 15, and 16 of this series where the Pennsylvania minority,
Massachusetts minority, and New Hampshire Convention proposals
protecting the keeping of arms are examined in proper chronological
order).

This relocation of discussion between the Virginia and Madison's
arms proposals about earlier protections for the right to keep arms
serves two purposes in the brief. Grouping the undeniably private
right protecting earlier proposals together at this point and
distinguishing them from the Virginia/New York proposals, which
combined the right to keep arms with a well regulated militia
reference, helps deemphasize the included right to keep arms
protection while advancing the militia powers only related view of
the historians. A second reason for using the earlier protections as
transition material separating the Virginia proposal from Madison's
version that was based directly upon it is to divert attention away
from the complete inconsistency between Madison's actual language
and the "reserved power of the states" argument that the historians
insist on reading into it.

This is James Madison's Second Amendment predecessor:

“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, p.654]

Here is one of the historians' interesting claims about Madison and
his proposal's intent:

Assertion #11
"But as the eventual Tenth Amendment demonstrates, Madison also
intended to rebut Anti-federalist charges of "consolidation" by
affirming the reserved powers of the states and the people, in a
manner akin to the Second Amendment." [p.25]

Fact Checking of Assertion #11
There is more than one factual historical problem buried within this
assertion. First, Madison's Second Amendment predecessor did not
even mention the "states" or "powers". Thus, it is quite clear that
Madison was not using his version of the Second Amendment
with any intention of protecting "reserved powers of the states"
relating to the militia.

Second, James Madison was a Federalist leader and one of the
Framers most responsible for taking powers away from the states
and giving paramount authority over them to a new federal
government in the U.S. Constitution. The historians' bold implication
that somehow Madison had changed his mind and for some strange
reason now intended to assure "reserved powers of the states"
relating to arming the militia is nothing short of preposterous.
What is most interesting is how the historians attribute Madison's
intent to Congressional Second Amendment language not found
anywhere in Madison's actual proposal. He changed Virginia's
"free state" reference to "free country" because his version was
intended to protect against the country's new government while
the language it was taken directly from originally protected against
Virginia's new state government.

The attempt to tie the Tenth Amendment to the Second Amendment
in the brief is without historical foundation because the two
amendments came from such completely different sources. The
Tenth Amendment predecessor was included in Virginia's list of
"other" amendments specifically because it was not developed from
the existing state bills of rights protections. It related to the division
of powers between the federal and state governments and the
people. It did not relate to any specific rights. The contrary was
true for Madison's Second Amendment predecessor. It and the
other protections later incorporated into the first eight
amendments were all included in a “bill of rights” that was
developed from state bill of rights provisions that Madison
understood as protecting rights of the people against abuse by
state governments.

The Second Amendment's well regulated militia reference was, for
example, developed directly from the 1776 Virginia Declaration of
Rights language because that was the verbatim source for the 1788
Virginia Ratifying Convention's proposed Bill of Rights clause.
Madison promised to support those Bill of Rights provisions in
order to achieve ratification of the U.S. Constitution by Virginia.
It was not the historians' proffered militia powers dispute that
brought about the Second Amendment. Instead, it was clearly the
Bill of Rights dispute that resulted in addition, not only of the Second
Amendment, but of the other first eight amendments to the
Constitution as well. [See OSA pp.457-462 for Virginia's proposed
bill of rights and list of other amendments.]

The powers reserved to the states in the Tenth Amendment include
those that are, specifically, "not delegated to the United States by
the Constitution". But power to provide for arming the militia was
delegated to the United States by the Constitution. Thus, if the Tenth
Amendment is anything like the Second Amendment as the historians
claim, neither amendment protects "reserved powers of the states"
over arming the militia because it is not a reserved power of the
states, and there is no period evidence that Madison intended to
make it one.

The Constitution itself does reserve certain militia powers to the
states - specifically officering and training of the militia. The Second
Amendment has nothing more to do with these actual "reserved
powers of the states" over the militia than it does with the powers
not reserved to the states by the Tenth Amendment, such as
arming the militia. It is also clear that the Federalists, who had
super-majorities in both houses of Congress had no reason
whatsoever to alter any of the Article I, Section 8 powers they had
previously partitioned between the federal and state governments
just as they wanted them.

Conclusion - Assertion #11 is Erroneous
Madison had no intention of protecting "reserved powers of the
states" in his Second Amendment predecessor because no such
terminology is found in his proposal. Also, there is nothing similar
about the Second and Tenth Amendments. Their sources and
purposes are separate and distinct. The Second relates to a specific
right that was developed from limitations on state authority
found in the existing state bills of rights, just like the other
provisions in the first eight amendments. The Tenth Amendment
relates to proper construction of the division of powers between
the state and federal governments and the people who gave power
to both. The historians' argument about "reserved powers of the
states" being a purpose of the Second Amendment is just another
clever manifestation of the collective rights argument, which
apparently has a thousand lives and emanations in the hands of gun
control supporters.

Root Causes of Never-ending Second Amendment Dispute - Part 20

Professional Academic Historians' Heller Amicus Brief a Disgrace

A George Mason Retrospective
Updated April 5, 2013
George Mason is mentioned only once in the entire Rakove historians' Heller amicus brief, and then only for a misleading argument suggesting that the Second Amendment predecessor was intended to guarantee authority to the state governments over arming the militia (see part 18, below).

The historians' brief, ostensibly about the history of the Second Amendment, a U.S. Bill of Rights provision, fails to mention any of the relevant and essential facts that link George Mason to development of the U.S. Bill of Rights predecessors. He was the single person most responsible for demanding a federal bill of rights based on the state bills of rights. The first such demand occurred within the Federal Convention and came directly from Mason. The historians completely ignored this milestone in development of the U.S. Bill of Rights in order to emphasize their argument about development of the Constitution's militia powers as the source of a Bill of Rights provision instead. Amazingly, the historians even fail to mention that it was Mason who first brought up the subject of regulating the militia in the Federal Convention. Mason was a major player in development of the Constitution in Philadelphia.

In his Objections to the Constitution, which was published shortly after the Constitution was made public, Mason made clear the bill of rights concern of those opposing ratification. The new Constitution gave power to the federal government that specifically made laws of Congress superior, not only to the laws passed by the states, but also to the state constitutions. During the Revolution, Americans had constitutionally protected their rights against misconstruction and abuse of power by the new state government within the new state constitutions, and most specifically in declarations or bills of rights.

Thus, it was very clear to George Mason that a federal bill of rights providing the same protections found in the state bills of rights was necessary in the new U.S. Constitution. Without such a bill of rights, there was no security for liberty and the continued exercise of their constitutionally protected rights by the people of the United States. It was protection of these very rights that had largely influenced Americans to revolt against the extravagant British claims of power and to establish new state governments under written constitutions with limiting bills of rights. As subsequent events made clear, most Americans were not willing to adopt a new form of government without including these protections in a constitutional level bill of rights.

Mason was notorious for his refusal to sign the new Constitution due to the lack of a bill of rights(there were only three non-signers). Before leaving Philadelphia, Mason met with and discussed his concerns about lack of a bill of rights in the new Constitution with all of the men who later became leaders of the Pennsylvania Minority, William Findlay, John Smilie, and Robert Whitehill. It was these men who argued for a bill of rights and other amendments in Pennsylvania's ratifying convention, and Whitehill who proposed virtually a complete Bill of Rights for the Constitution based on the Pennsylvania Declaration of Rights. John Smilie mentioned during debate in the Pennsylvania Ratifying Convention that he had discussed the Virginia Bill of Rights with George Mason.

Later, Mason gave a memorable speech on returning to Virginia from the Federal Convention. He indicated that he would have rather cut off his hand than sign the Constitution because it did not protect the rights of the people - strong words from a giant of American constitutionalism.

The model Bill of Rights adopted by the Virginia and North Carolina ratifying conventions was written by George Mason, who was chairman of an Antifederalist amendments committee in Virginia's convention. Shortly after its formation, and well before it was introduced in Virginia's convention, Mason sent his Bill of Rights on to New York Antifederalists. They used it as the basis of the New York Ratification Declaration of Rights. It was Mason's letter sent with the complete model Bill of Rights to New York that definitively proves the Second Amendment predecessor could not have been intended as a militia powers amendment because the committee had not yet considered any amendments on that subject.

One would think that at least some bits or pieces of this most relevant information for understanding the Second Amendment's development might have made its way into the historians' Heller brief considering that it was prepared by a large group of professional academic historians, but that is not the case. The historians, on the contrary, seem to have actually gone out of their way to separate all relevant Bill of Rights related information linking the Second Amendment to Bill of Rights development in order to make their militia powers only related argument seem the more plausible. As a result, Mason in general is out and only militia references are in. That their argument is internally inconsistent, reliant on numerous erroneous statements, and is directly contradicted by a veritable sea of period sources is well documented in prior posts of this series.

George Mason is The Man
Yet, there is even more and equally relevant information linking George Mason to development of the Second Amendment's structure, language, sources, and meaning. Mason is the man who wrote the first American state bill of rights, that of Virginia in 1776. He was the first to use a well regulated militia reference in a state bill of rights as he developed it for the lead clause of the original Mason Triad, a power limiting structure later adopted in every state bill of rights formed before the U.S. Bill of Rights. Mason Triads related to establishment of civil government and civil control of the military. In other words, they related to protection of an armed civil population.

Tracing back Mason's usage of well regulated militia language, something one would expect of any good historian, it becomes clear that the well regulated militia reference is not to government authorized forces, but rather to self-embodying defensive associations of civilians that were only possible because the people possessed and knew how to use their own arms. Mason was a very early community organizer of Fairfax county's able-bodied free men. He urged them to form companies, elect officers, and train with their own arms as an effective defensive force against government tyranny, and later referred directly to this association as a well regulated militia, simply meaning an effective militia.

These most relevant facts about George Mason's personal involvement in over a decade of early American Second Amendment related Bill of Rights development directly contradict everything that the professional historians' brief attempts to establish using only bare assertions and the academic credentials of the signatories as collateral. It is to be hoped that many more of those interested in the Second Amendment will become more familiar with the overwhelming shortcomings of the historians' brief. In this way, those who have relied upon it may see the light, and the damage it has caused in continuing the completely unnecessary and polarizing dispute about Second Amendment intent can be properly buried in the ocean of American historical facts.

[The short guide to the most relevant parts of that ocean of historical facts can be found in: The Founders' View of the Right to Bear Arms]

Root Causes of Never-ending Second Amendment Dispute - Part 18

Off-Track Militia Powers Historiography Erroneously Linked to Origin of the Second Amendment in the Rakove Heller Amicus Brief
[Updated July 18, 2009]

The heart of Professor Rakove's Heller amicus brief consists of eight consecutive pages consisting of militia powers development in the Federal Convention, subsequent ratification era dispute about those powers, culminating with Virginia Ratifying Convention debate on that subject. An Antifederalist argument about disarming the militia is the emphasized point concerning militia powers discussion in Virginia's convention. The historians point out that Virginia's convention is where the Second Amendment's antecedent language originated, ostensibly as the result of all the militia powers debate and the Virginia Convention disarming statement they have detailed and emphasized.

A George Mason statement regarding disarming the militia made in Virginia's convention is the vehicle used in the brief to link the militia powers debate to appearance of the Second Amendment's predecessor language.

"George Mason similarly imagined how the militia might be disarmed: not by the federal government confiscating weapons, but rather, “Under various pretences, Congress may neglect to provide for arming and disciplining the militia, and the State Governments cannot do it, for Congress has an exclusive right to arm them.” [p.20]

The brief points out that Virginia Federalists responded to Mason indicating that power over the militia was concurrent between the state and federal governments, thus assuring the state's ability to arm the militia. Mention of the Second Amendment predecessor is then inserted into the historians' militia powers history at this point:

"Because the Virginia convention was so evenly divided, Federalists accepted a proposal to recommend constitutional amendments to the first Congress. This was where the antecedent wording of the Second Amendment can be found, closely followed by the similar language adopted by New York two weeks later." [pp. 20-21]

While the subjects of the militia and disarming can certainly be related to the Second Amendment's language, the Second Amendment antecedent from Virginia did not result from the militia powers dispute that Mason was discussing in the quote presented by Professor Rakove. The Second Amendment instead resulted from ongoing demands for a federal bill of rights based on existing state bill of rights protections, an intense ratification era dispute that Professor Rakove virtually ignored in the professional historians' brief. Further examination of the Virginia militia powers debate details and the actual amendments proposed by Virginia make this point very clear.

The Mason quote in the brief relating to disarming the militia was his presentation of a plausible method by which the new federal government could justify a permanent standing army by destroying the militia through inaction. The government could simply fail to provide for arming and disciplining the militia. Mason's disarming argument was offered in support of the Antifederalist view that power over arming and disciplining the militia should be guaranteed to the states in the new Constitution. In fact, Mason stated exactly what type of amendment Antifederalists in Virginia desired to solve these concerns immediately after making his militia disarming related arguments:

"in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the states may arm and discipline them. With this single exception, I would agree to this part [of the Constitution]" [The Origin of the Second Amendment, p.402]

The concern expressed in the militia powers related arguments, including Mason's quote in the brief, related to guaranteeing state authority over the militia. It did not relate to adding state bill of rights protections, such as the Second Amendment predecessor, to the U.S. Constitution. At the close of Virginia's convention, Antifederalists proposed two lists of amendments - a complete Bill of Rights and a list of twenty "other" amendments, both later adopted by the Convention. All of the Bill of Rights provisions were directly based on existing state bills of rights provisions, while none of the "other" amendments were so based.

George Mason, as chairman of the Antifederalists' amendments committee, was the author of both lists of amendments. It was one of these “other” Mason prepared amendments that was specifically intended to solve the lack of state militia power concern expressed in his disarming argument.

"11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same." [OSA, p.460]

It cannot be more clear that it was this proposed “other” amendment that resulted from Mason's militia disarming argument in the Virginia Ratifying Convention, not the antecedent Second Amendment language from the proposed Bill of Rights.

Professor Rakove does not accurately quote the Second Amendment predecessor language that his brief suggests as the resolution of Mason's disarming argument and the militia powers debate. This language comes from Article 17 of the proposed Bill of Rights:

"17th. That the people have a right to keep and bear arms; 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, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power." [OSA, p. 459]

This Bill of Rights proposal is obviously based directly on the existing 1776 Virginia Bill of Rights Mason Triad, the major difference being addition of a right to bear arms variant added to the well regulated militia language at the beginning. [See part 7 for development of the original Mason Triad.] Making use of both right to bear arms and well regulated militia language from existing state bills of rights, it is the original two-clause Second Amendment predecessor.

There is absolutely nothing in this Second Amendment antecedent language indicating any intent to guarantee state authority over the militia or to shift such power from the federal government back to the states. Both clauses of this provision are taken from existing state government limiting bill of rights with the intention of limiting the new government in exactly the same way the state governments were limited. Existing state bill of rights provisions could not have been intended to alter or shift powers between the state governments and the new federal government because all of their protections had been adopted years before the U.S. Constitution was written.

The Rakove professional historians' Heller brief presentation of Second Amendment history has ripped the Second Amendment out of the Bill of Rights, torn it in half, and discarded the right of the people to keep and bear arms clause in order to advance the militia clause as relating solely to protection of state authority. But this argument is directly contrary to the origin of the Second Amendment predecessor clauses in existing state government limiting bills of rights. Blindly advancing a militia powers only intent for the Second Amendment, the professional historians have failed to connect any of the proposed ratification era protections for the right of the people to keep and bear arms with their immediate state bill of rights antecedents.

The more one studies the details and facts relating to the origin of the Second Amendment, the more it becomes evident that the historians' have made a major historical blunder by emphasizing militia powers development and related disagreements during ratification as the origin of the Second Amendment while virtually ignoring the extensive period demands for a federal bill of rights based on existing state bill of rights protections. The latter arguments resulted in development of the Second Amendment, not the former. This is the very reason why the Rakove professional historians' Heller amicus brief contains so many erroneous statements and inconsistencies, as documented in previous parts of this series.

Root Causes of Never-ending Second Amendment Dispute - Part 16

Historians Ignore the Bill of Rights History of the Second Amendment

The arms protecting provision adopted by the New Hampshire Ratifying Convention, even though recognized right along with the Pennsylvania minority and Sam Adams Massachusetts proposals in the professional historians' Heller amicus brief as relating to “private ownership of firearms," was treated in exactly the same way as the other two provisions discussed in prior posts. All connection to the ongoing political struggle for a federal bill of rights was completely overlooked and no relationship to the future Bill of Rights provision protecting the people's right to arms noted. Even though New Hampshire's proposals obviously related to protections later found in the First, Second, Third, Fifth, Seventh, and Tenth Amendments, the historians disposed of the arms provision without further comment on that state's Bill of Rights proposals than by quoting the Second Amendment predecessor and stating it was "a formula unique to the discussions of 1787-1788." They provide no bill of rights related connection whatever, even though their brief is purportedly a presentation of the Second Amendment's history.

Here is the New Hampshire arms provision in its original bill of rights related context:

"X. That no standing army shall be kept up in time of peace, unless with the consent of three fourths of the members of each branch of Congress; nor shall soldiers, in time of peace, be quartered upon private houses, without the consent of the owners.
XI. Congress shall make no laws touching religion, or to infringe the rights of conscience.
XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion".[The Origin of the Second Amendment, p.446]

Within these three bill of rights related proposals are found the very first ratifying convention adopted predecessors for freedom of religion, the right to keep arms, and against quartering of soldiers, protections found in the First, Second, and Third Amendments. New Hampshire's language that "Congress shall never" make laws to "disarm any citizen" is exactly the type of language it used in its protection of religious freedom. In fact, New Hampshire doubles up on the strongest of restrictive language by declaring that "Congress shall make no laws" about religion or "to infringe" rights of conscience, adding restrictive language of the type later used in the Second Amendment to the exact quote of the restrictive language later used in the First Amendment.

New Hampshire's use of First Amendment type restrictive language to protect a Second Amendment related right is used by the historians to classify it as "unique" and ignore the clear relationship to the Second Amendment's strong protection for the right to keep arms. Failure by the historians to relate New Hampshire's bill of rights related arms proposal, or the prior ones in the Pennsylvania and Massachusetts conventions, to the ongoing political struggle for a federal bill of rights and later development of the Second Amendment is typical for this brief.

Such failure stands in stark contrast to discussion of a period Bill of Rights proposal by Richard Henry Lee in the Confederation Congress (misidentified as the Continental Congress). Professor Rakove's brief singles out Lee's proposed Bill of Rights to further a militia argument and to emphasize that it had no arms provision. That this is the sole mention of a ratification era “Bill of Rights” within the brief is bizarre considering the massive amounts of historical information relating to this subject and the stated intent of the brief to present the history of a U.S. Bill of Rights provision. As in this case of the New Hampshire arms proposal and R.H. Lee's proposed Bill of Rights, the historians' routinely pursue less relevant sources while disassociating clearly Second Amendment related bill of rights provisions rather than associating and connecting them historically to development of the Second Amendment.

This is a further reason why the historians brief is completely unreliable.

Root Causes of Never-ending Second Amendment Dispute - Part 11

U.S. Bill of Rights Controversy Omitted in the Historians' Heller Amicus Brief

A major political dispute about the need for a federal bill of rights raged during the 1787-1788 ratification debate over the U.S. Constitution. In spite of the fact that it was this major political controversy that led directly to development of the first eight amendments from the existing state declarations of rights, the historians ignored these well documented facts and argued otherwise in the case of the Second Amendment. Remarkably, in the last two-thirds of the their brief, the subject of a bill of rights is only mentioned twice, the second being a red herring argument that will be addressed in a future post. The earlier reference is simply passing mention and involves a standing army proposal by Richard Henry Lee in the Confederation Congress as part of a "Bill of Rights" for the proposed Constitution then under consideration there. R.H. Lee's proposal began:

"It having been found from universal experience, that the most express declarations and reservations are necessary to protect the just rights and liberty of mankind from the silent, powerful and ever active conspiracy of those who govern; and it appearing to be the sense of the good people of America, by the various bills or declarations of rights whereon the government of the greater number of the states are founded, that such precautions are necessary to restrain and regulate the exercise of the great powers given to rulers. In conformity with these principles, and from respect for the public sentiment on this subject, it is submitted, -
That the new constitution proposed for the government of the United States be bottomed upon a declaration or bill of rights, clearly and precisely stating the principles upon which this social compact is founded. . ." [OSA p.27]

The historians ignored this relevant bill of rights related information in Lee's proposal and instead emphasized there was no "firearms" related provision from him. The fact is Lee also failed to include any provision relating to freedom of speech, prevention of quartering troops in time of peace, or any specifics regarding the numerous protections later found in the Fifth and Sixth Amendments. Lee's suggestions were not taken directly from the existing state declarations of rights the way later proposals for a federal bill of rights demonstrably were.

Overly focused on the lack of a "firearms" reference and inclusion of a standing army reference, the historians completely overlooked Lee's comments about the state declarations of rights - comments that directly contradicted their own previous interpretation regarding such provisions' lack of legally binding authority on state legislative power. Obviously, R. H. Lee understood that the state bills of rights "restrain and regulate" state governmental power. He also connected the concept of the power restricting state bills of rights to a new bill of rights for the proposed U.S. Constitution, something the historians abjectly failed to do anywhere in their brief. In fact the historians go out of their way to avoid any such links.

It is not as if Lee's linking the need for a federal bill of rights to the prior power limiting state bills of rights represented a rare period understanding and argument. The ratification era is replete with such references and understandings (see source collection cited above). The historians have simply decided to ignore the actual extensive period historical evidence and advance their personal opinions about the development of the Bill of Rights and its second provision instead, just as they ignored George Mason's seminal attempt for a bill of rights within the Federal Convention. The Bill of Rights history ignoring approach destroys the historical value of these fifteen academics' brief, which was supposed to insure that the U.S. Supreme Court would have "an informed understanding of the history that led to the adoption of the Second Amendment." [p.1]

Utterly worthless for its stated purpose due to lack of relevant historical information and inclusion of erroneous assertions about predecessor language, the historians' Heller brief provides a fundamentally false history of the Second Amendment that four Justices of the Supreme Court used as a foundation for their dissenting opinion in the case.

The Meaning of 'Shall Not Be Infringed'

UPDATED Monday, October 19, 2015

As a result of Second Amendment dispute, it has been suggested that to infringe relative to the fundamental right to keep and bear arms means only to completely destroy the right, and that extensive "reasonable" regulations are legitimate and do not infringe the right. As an example, it has been claimed that a complete ban on certain types of firearms is a “reasonable” regulation and would not violate the "shall not be infringed" restrictive language. A contrary understanding is that infringe means to encroach upon or narrow the right in any way and that the purpose for the "shall not be infringed" language was to prevent regulation of the right.

An excellent method for determining how extensive the Bill of Rights protection based on the verb "infringe" was intended to be in the Founders' view is to rely on historical examples. What can be gleaned from their own use of this term in relation to other Bill of Rights proposals? Here are some of them.

James Madison's Usage
The Second Amendment's "the right of the people to keep and bear arms shall not be infringed" language is exactly what was proposed as the first clause of the amendment by James Madison on June 8, 1789. In addition to that "infringe" based language, Madison also included this freedom of religion related protection in his Bill of Rights proposals to Congress: “nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.” [The Origin of the Second Amendment p.654] Assuming that Madison's intention in preventing religious liberty from being “infringed” was to allow for considerable "reasonable" regulation by the federal government is illogical. In fact, it is clear that the intent of such language was to prevent any interference whatsoever by the government in such matters. The later change to “Congress shall make no laws” language buttresses this period understanding of "infringe" based protection.

Samuel Adams' Usage
Another person who used "infringe" in bill of rights proposals for the Constitution was Samuel Adams in the Massachusetts Ratifying Convention. He attempted to protect freedom of the press and religion with this proposal: “that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience”. [OSA p.260] It is unthinkable that such usage by Adams indicated an intention to allow extensive reasonable regulations of freedom of the press and religious beliefs. Instead, such language was certainly intended as the strongest of limits upon government actions, just as in Madison's case with his infringe based restrictive proposals to Congress regarding freedom of religion and the right of the people to keep and bear arms.

Congressional Amendments Committee Usage
There is other informative period Bill of Rights related use of "shall not be infringed" language often overlooked today due to gun control advocates' historical arguments diverting away from the Second Amendment's actual Bill of Rights history. The Committee of Eleven, to which Madison's proposals were submitted by Congress, accepted his original use of "infringed" relative to freedom of religion as well as his "shall not be infringed" language relative to the right of the people to keep and bear arms. The Committee also added Madison's original Second Amendment restrictive language ("shall not be infringed") to other First Amendment rights – freedom of speech - freedom of the press - the right of peaceable assembly - the right to apply for redress of grievances. All of these, including Madison's “inviolable” freedom of the press and his right of the people to speak, of which they “shall not be deprived or abridged” [OSA p.654], were re-stated by the Committee as rights that “shall not be infringed”. [OSA p.680] Once again, it does not appear that such period usage indicated the Committee members understood that religious beliefs could be subjected to extensive reasonable regulations, or that they used "shall not be infringed" with the intention that it would condone extensive and reasonable regulation of freedom of speech, freedom of the press, the right of peaceable assembly, the right to apply for redress of grievances, or the right to keep and bear arms.

Interpreting this restrictive "infringe" based language in the manner that some advocates of gun control do for Second Amendment usage removes all meaning of the terminology and completely destroys any protective intent of the provision. Such interpretations leave the intended protected rights to be regulated exactly like any other subject placed under the government's power. Such views of the language completely ignore the developmental history of the Bill of Rights, a history that is remarkably well documented because the need for a U.S. Bill of Rights was publicly and privately discussed for more than two full years prior to Congress' proposal of the U.S. Bill of Rights amendments.

Shall Not Be Infringed - Shall Make No Laws
Another interesting period fact is that the style of restrictive language ultimately used in the First Amendment – "Congress shall make no law" - was previously found mostly in Second Amendment related proposals.

The Pennsylvania Minority supported a proposal that: “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.151]

The New Hampshire Ratifying Convention adopted proposals related to the subsequently adopted First and Second Amendments that stated:
"XI. Congress shall make no laws touching religion, or to infringe the rights of conscience.
XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion". [OSA, p.446]

The restrictive language of New Hampshire's amendment protecting religious freedom contains not only the very words later used as restrictive language in the First Amendment but also the very strongest of restrictions that is based on the verb "infringe". It is inconceivable that infringe was intended in New Hampshire's religious freedom amendment as intended to allow any regulation whatever.

The Strongest Possible Restrictive Language
First and Second Amendment protections were always given the very strongest possible restrictive language – no law shall be passed – shall make no law – inviolable – not be deprived or abridged – not be restrained - shall not be infringed - nor shall the right be infringed - shall make no laws touching - shall make no laws to infringe. The Second Amendment's “right of the people to keep and bear arms shall not be infringed" language was clearly not intended to allow for extensive reasonable regulation. Rather, it was intended to prevent all laws and regulations that would result in the people being deprived, abridged, restrained, narrowed, or restricted in the exercise of their fundamental right to keep and bear arms.