Who Wrote The Original Version Of The Second Amendment?

The Second Amendment Has Deep Virginia Roots

The First Congress passed the U.S. Bill of Rights amendments on to the states for ratification in 1789 because a number of state ratifying conventions desired private rights protecting restrictions on the new Federal Government. By identifying who wrote the very first Second Amendment predecessor (one combining both right to arms and well regulated militia clauses), and who improved that language later in Congress, many facts illustrating the development and intent of this most disputed constitutional provision become clear.

Three native sons of Virginia were the men most responsible for developing and/or promoting not only the Second Amendment's language, but also the other provisions of the U.S. Bill of Rights - George Mason, Patrick Henry, and James Madison. The younger of these, Madison, was most prominently involved in passage of the Bill of Rights amendments by the First Congress. All three men were delegates the previous year to the 1788 Virginia State Ratifying Convention, which produced the model for the U.S. Bill of Rights. All three were also appointed as Virginia delegates to the Philadelphia Federal Convention of 1787 that produced the proposed U.S. Constitution, but Henry never attended. In addition, these three men were members of Virginia's Revolutionary Era Convention and on the committee which produced and adopted America's first state declaration of rights and form of government over a decade earlier, prior to the Declaration of Independence. And almost two years prior to that, George Mason and Patrick Henry were intimately involved in activities relating to private arms and defense well prior to any hostilities of the American Revolution. They later protected these activities against violation by the government in Virginia's 1776 Declaration of Rights Article 13, the first of many American Mason Triads. Its leading well regulated militia declaration was the earliest such bill of rights related usage linking an armed civil population to ultimate control over government raised armed force.

James Madison's contribution was presenting the House of Representatives an improved version of Virginia's model for the U.S. Bill of Rights and pushing for its adoption. His specific original contribution was addition of restrictive language to all rights protections, including 'infringe' based restrictions on First and Second Amendment protected rights. Madison also grouped private rights protections together including both Second Amendment clauses. However, he was not the originating author of Virginia's Bill of Rights model and its Second Amendment predecessor.

The original author of The Second Amendment's two-clause version, as well as the other Bill of Rights protections, was George Mason, Antifederalist chairman of an amendments committee in Virginia's ratifying convention. Mason was assisted in convention by Patrick Henry, whose renowned rhetorical skills helped convince the assembled delegates that a U.S. Bill of Rights based directly upon Virginia's 1776 State Declaration of Rights was essential. Mason's model Bill of Rights, with its novel two-clause Second Amendment predecessor greatly influenced all following state ratifying conventions.

New York's ratifying convention altered Mason's Second Amendment predecessor a month later to make it more clear in the New York Ratification Declaration of Rights, and the following month the North Carolina Convention adopted Virginia's language verbatim along with all of Virginia's other proposals and refused to ratify until a Bill of Rights was added to the Constitution. It was these last three state ratifying conventions of 1788 that Congress understood as desiring the Virginia model Bill of Rights amendments and its Second Amendment predecessor.

A year prior to these ratifying conventions, Mason and Madison had been very active members of the Philadelphia Federal Convention. Virginia's delegates offered the assembled state delegations the 1787 Virginia Plan for their consideration, and the U.S. Constitution resulted from pursuance of that Plan. A major Ratification Era controversy over the need for a Federal Bill of Rights erupted near the end of the Convention. Mason pointed out that a Bill of Rights was desirable and could be drawn up in "a few hours" by relying on the state declarations of rights. Yet the Convention delegations, in a rush to leave town, unanimously voted down a committee to draw up a Bill of Rights as part of the Constitution. At this time, Madison considered Mason's concern for a Bill of Rights as a relatively unimportant little circumstance, but Americans ultimately agreed with Mason.

George Mason refused to sign the proposed Constitution and left the Federal Convention extremely upset. Before leaving Philadelphia, Mason discussed the need for a Federal Bill of Rights with all three men who later became Antifederalist leaders of the Pennsylvania Ratifying Convention Minority - John Smilie, Robert Whitehill, and William Findlay. As a result, the three Pennsylvanians did in in their own ratifying convention exactly what Mason did later in Virginia's - prepared and proposed a bill of rights based on their own state declaration of rights, but it was defeated on a procedural vote. Undoubtedly, the reason Mason used both a Pennsylvania style right to arms clause and his own well regulated militia language as the original Second Amendment predecessor was his contact with the Pennsylvania Bill of Rights supporting leaders. Mason continued on after leaving Philadelphia engaged in a one man information campaign for a Federal Bill of Rights and against ratification of the proposed U.S. Constitution as written.

George Mason was also the primary author of the Virginia Declaration of Rights and Form of Government in June of 1776, early in the American Revolution. This was eleven years prior to his writing the Virginia model for a Federal Bill of Rights. But Mason was not alone in this early Revolutionary Era constitutional endeavor. Both Patrick Henry and James Madison were also members of the 1776 Virginia Convention that formed America's first state constitution, and both were on the committee with Mason that developed and approved the language. Mason's original well regulated militia clause from Virginia's 1776 Declaration of Rights was copied verbatim by Mason into Virginia's 1788 model for the U.S. Bill of Rights, and its full Mason Triad context was included.

Other states followed Virginia's 1776 lead on their Revolutionary Era declarations of rights. All seven subsequent states to adopt early American declarations of rights relied upon Mason's Virginia original version as a guide. This was especially apparent in their Second Amendment related Mason Triads, which protected an armed civil population, noted danger to liberty from a standing army, and declared government raised force subordinate to the civil power.

The older two Virginians, George Mason and Patrick Henry, were also both directly involved in defensive activities of the early Revolutionary Era clearly related to the Second Amendment and its predecessor Virginia Declaration of Rights Article 13 Mason Triad protection. Almost two years before its adoption in June,1776, both men met with George Washington and other Virginia patriots at Mount Vernon in August of 1774 to discuss claims of unlimited authority by government officials and the threat of military force to compel compliance. This was well over a half year before any hostilities began. The result of that meeting was formation of all-voluntary armed defensive associations in each of the delegates' home counties. Mason helped form and lead the Fairfax Independent Company, and Henry organized and led the Hanover Volunteers. By early 1775, still before hostilities, Mason started referring to his county's voluntary defensive association as a well regulated militia. According to George Washington, many counties in Virginia had such voluntary independent companies of militia by that time.

Voluntary defensive associations were only possible because Americans, largely farmers and frontiersmen, possessed their own arms and ammunition, knew how to use them, and could join together in mutual defense, just as they were capable of individual self defense. Americans individually decided they needed to protect themselves, their rights, their communities and their existing form of government against government officials who claimed unlimited authority, violated their rights, and destroyed their established civil government utilizing armed force.

There are extensive details regarding each of the above periods of time and the commentary of Mason, Henry, Madison, and many others relating to their activities and Second Amendment developmental history. As can be seen in the above narrative, the U.S. Constitution, and even more so the U.S. Bill of Rights, are Virginia inspired documents. George Mason was THE giant of American Constitutionalism, James Madison was also such a giant, and Patrick Henry rhetorically backed up their endeavors with clear and convincing reasoning. The Second Amendment most clearly has deep, deep Virginia roots.

The District of Columbia vs Heller Dissent - Part 4

Justice Stevens' Completely Off-The-Rails American History

 Updated October 20, 2016

      As documented in Part 3, Justice Stevens' Heller dissent is in direct conflict with the view of George Mason and Patrick Henry, who developed and adopted the Article 13 well regulated militia clause of Virginia's 1776 Declaration of Rights. Related George Mason writings leading up to Virginia's Declaration also indicate that Justice Stevens is entirely wrong about the intent of the well regulated militia language later incorporated into the Second Amendment. The historical background of the period and context of Mason's writings further confirm the conflict between the founders' view and the Heller dissent historical argument.

      The Parliament of Great Britain had declared a right to bind Americans in all cases whatsoever in 1768. In May of 1774, two years prior to adoption of Virginia's Declaration of Rights, Britain used military force to close the port of Boston as punishment for the Boston Tea Party and later revoke the Massachusetts Charter, resulting in the colony's entire civil society being made subservient to military rule under British government officials. By mid1774, the people in all of the American colonies had to decide whether to accept such extravagant claims of power and related government military action as legitimate, or if not, what to do about it.

[See The Founders' View of the Right to Bear Arms, pp.27-50 for history and citations not specified in this Part.]

      George Mason, along with Patrick Henry, George Washington and other Virginia patriots met at Mount Vernon on August 30, 1774, to address these issues. As a result, the attendees encouraged voluntary self-embodying defensive associations at the local level in their home counties. Mason promoted the Fairfax Independent Company of Volunteers, and Henry was involved with the Hanover Volunteers. Less than a month after the Mount Vernon meeting, the Fairfax Volunteers associated for defense:

"At a Meeting of a Number of Gentlemen & Freeholders of Fairfax County in the Colony of Virginia, on Wednesday the 21st: Day of September 1774, George Mason Esqr. in the Chair, the following Association was Formed & entered into.

. . . we the Subscribers . . . being sensible of the Expediency of putting the Militia of this Colony upon a more respectable Footing, & hoping to excite others by our Example, have voluntarily freely & cordially entered into the following Association . . .

That we will form ourselves into a Company, not exceeding one hundred Men, by the Name of The Fairfax independent Company of Voluntiers, making Choice of our own Officers; . . . That we will meet at such Times & Places in this County as our said Officers . . . shall appoint & direct, for the Purpose of learning & practicing the military Exercise & Discipline . . . furnished with a good Fire-lock & Bayonet, Sling Cartouch-Box, and Tomahawk. And that we will, each of us, constantly keep by us a Stock of six pounds of Gunpowder, twenty pounds of Lead, and fifty Gun-flints, at the least.”

[Mason Papers I, pp.210-211]

      Within four months of The Fairfax Independent Company voluntarily associating for defense against government tyranny, George Washington wrote there were independent companies of militia in many counties of Virginia.

      The Fairfax County Committee of Safety, of which Mason and Washington were members, passed a resolution in mid-January recommending the male inhabitants age 16 to 50 self-embody as local militia companies. This resolution described the associators as a well regulated militia, terminology that was copied from a Maryland resolution passed the previous month recommending the same action to Maryland's inhabitants. By early February, Mason had incorporated the well regulated militia language into his Fairfax County Militia Plan:

"Threatened with the Destruction of our antient Laws & Liberty, and the Loss of all that is dear to British Subjects & Freemen . . . firmly determined, at the hazard of our Lives, to transmit to our Children & Posterity those sacred Rights to which ourselves were born; and thoroughly convinced that a well regulated Militia, composed of the Gentlemen, Freeholders, and other Freemen, is the natural Strength and only safe & stable security of a free Government . . .WE the Subscribers, Inhabitants of Fairfax County, have freely & voluntarily agreed, & hereby do agree & most solemnly promise, to enroll & embody ourselves into a Militia for this Country, intended to consist of all the able-bodied Freemen from eighteen to fifty Years of Age, under Officers of their own Choice; . . .And we do Each of us, for ourselves respectively, promise and engage to keep a good Fire-lock in proper Order, & to furnish Ourselves as soon as possible with, & always keep by us, one Pound of Gunpowder, four Pounds of Lead, one Dozen Gun-Flints, & a pair of Bullet-Moulds, with a Cartouch Box, or powder-horn, and Bag for Balls. . . . And that we will always hold ourselves in Readiness, in Case of Necessity, Hostile-Invasion, or real Danger, to defend & preserve to the utmost of our Power, our Religion, the Laws of our Country, & the just Rights & Privileges of our fellow-Subjects, our Posterity, & ourselves, upon the Principles of the English Constitution."

[Mason Papers I, pp.215-216]

      Self-embodying voluntary defensive associations, described in well regulated militia terms, began to spread across the American colonial landscape during this period. These activities originated well before any hostilities of the American Revolution and over a year prior to Mason's inclusion of well regulated militia language in Article 13 of America's first state declaration of rights.

      Mason and other period Americans used well regulated militia language prior to the Revolutionary War to describe the people taking up their own arms and self-embodying for defense against government troops and officials who were destroying civil liberty and endangering free government. Mason's later inclusion of this commonly used period language in Virginia's Declaration of Rights as a limit on state power indicates that Article 13 was understood as assuring the right of the inhabitants to self-embody for defense against tyranny. The essential prerequisite of the people taking up their own arms to self embody for defense against government misuse of force, and inherent in the very concept of a well regulated militia, is the people's possession and use of their own arms, which was understood as protected by Article 13.

      Justice Stevens' Heller dissent argument is that the well regulated militia language of Virginia's Article 13 related to the state government's authority and power over its militia institution. That view directly conflicts with the author of the provision, George Mason, and the patriots who adopted it. The founders' view was exactly the opposite, that the Article 13 well regulated militia language was a provision “paramount to the power of the legislature” protecting a self-embodying militia of the people “against the state government”, according to George Mason and Patrick Henry, respectively, as documented above and in Part 3 below.

[In Part 5, Justice Steven's lack of understanding regarding Founding Era militia usage will further demonstrate the Heller dissent historical arguments to be completely off the rails American history.]

The District of Columbia vs Heller Dissent - Part 3

Justice Stevens' Off Track

American History 

     In addition to the sources presented in Parts 1 and 2 of this series, there are others from the 1788 Virginia Ratifying Convention proving Justice Stevens' Heller dissent to be in error regarding Second Amendment intent. The founders who developed and adopted the Amendment's immediate predecessor viewed it in a completely different light than Justice Stevens, a fact that is evident from their bill of rights discussion within the convention.
     On June 16, 1788, Patrick Henry and George Mason both gave speeches regarding the need for a federal bill of rights. Henry set up their upcoming arguments by reading six specific provisions from Virginia's 1776 Declaration of Rights: 
"Mr. Henry moved to read from the 8th to the 13th article of the declaration of rights; which was done." 
[The Origin of the Second Amendment, p.434]
     Those specific articles of Virginia's state bill of rights included predecessors of protections later included in the First, Second, Fourth, Fifth, Sixth, Seventh, and Eighth Amendments to the U.S. Constitution. The well regulated militia language of Virginia's ratifying convention Article 17, which Justice Stevens erroneously conflated, was copied verbatim by George Mason from this 1776 Virginia Declaration of Rights Article 13 original: 
"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;"
 [The Origin of the Second Amendment, p.434]
     Interestingly, both Patrick Henry and George Mason were members of the drafting committee in the Revolutionary Era convention that adopted this 1776 Virginia well regulated militia clause as part of America's first state bill of rights over a decade earlier. Mason was acknowledged as its author by the other delegates. In the modern dispute over meaning of well regulated militia clause language in American bills of rights, the comments of Mason and Henry are essential for determining period understanding because they originated the language in 1776 and utilized what they originated again later verbatim in 1788 as model U.S. Bill of Rights language. Their 1788 bill of rights comments directly contradict the Heller dissent Second Amendment intent argument.
     Mason spoke first on the bill of rights subject, explaining his understanding of Virginia's state bill of rights and the general purpose of the specific provisions Henry had read shortly before, which included the original well regulated militia clause: 
"there were certain great and important rights, which the people, by their bill of rights, declared to be paramount to the power of the legislature. . . .it was necessary that the great rights of human nature should be secure from the encroachments of the legislature, . . ."
[The Origin of the Second Amendment, p.436]
     Henry followed Mason indicating the general need for the protections he had read to be added in a federal a bill of rights: 
"You have a bill of rights to defend you against the state government, . . . and yet you have none against Congress," 
[The Origin of the Second Amendment, pp.437-438] 
     Patrick Henry and George Mason both understood Virginia's 1776 well regulated militia clause as a restriction on state government power. Prior to making the above statements in Virginia's ratifying convention, they had already inserted an exact quote of that clause into their Antifederalist committee model U.S. Bill of Rights, which was developed by assembling existing state bill of rights limitations on state government into a new Federal bill of rights of limitations on the power of the proposed Federal Government.
[See The Founders View of the Right to Bear Arms, pp.61-66 for more detailed history and citations regarding the origin of Virginia's well regulated militia clause.] 
     Contrary to the view of the framers who originated the well regulated militia clause in 1776, and who described and adopted it again in 1788, Justice Stevens, as documented in Part 1, conflated the clause's intent into protection for state authority. Early in his dissent, after quoting the Second Amendment's first clause, Justice Stevens directly quotes Virginia's 1776 language as evidence that the founders' intent matches his understanding of protecting “state militias”: 
"“A well regulated Militia, being necessary to the security of a free State”
The preamble . . . is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneously with the Declaration of Independence.5 Those state provisions highlight the importance members of the founding generation attached to the maintenance of state militias:"

[Heller dissent, pp.5-6] 
"5 The Virginia Declaration of Rights ¶ 13 (1776) provided: "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:"
[Heller dissent, p.5, note 5]

     The Heller dissent uses the 1776 Virginia Article 13 well regulated militia language to support its argument the Second Amendment's militia clause was intended to protect state power. The framers responsible for its development and inclusion in Virginia's 1776 Declaration of Rights described the purpose of Article 13 as exactly the opposite, a limit on state power. This is another clear example demonstrating the direct conflict between Justice Stevens' opinion, expressed in his Heller dissent, and the documented views of the “founding generation” he bends into alignment with his own beliefs.
     The framing founders responsible for the 1776 language understood it as a limit on state power protecting a militia composed of the people, or in other words, protecting an armed populace. These drafting founders used the 1776 language again in the 1788 immediate predecessor of the Second Amendment with the clear intention of limiting the Federal Government in the same way it limited the state government, by protecting a militia of the people. Justice Stevens is totally confused about the meaning of this language, and his Heller dissent arguments are not only factually unfounded, but directly contradicted by the period evidence.

[In Part 4, George Mason's use of well regulated militia language in Virginia prior to writing the concept into that state's bill of rights is examined and documented, further demonstrating the off-track nature of Justice Stevens' Heller dissent.]

The District of Columbia vs Heller Dissent - Part 2

Justice Stevens' Sidelined

American History 

[Updated May 26, 2015]
Part 1  documented Justice Stevens' Heller dissent Second Amendment intent argument is founded on a conflation error because it directly conflicts with the statements of George Mason, the Ratification Era framer of its two-clause language. The dissent also linked the intent of Mason's Virginia Ratifying Convention Second Amendment proposal to those of North Carolina and New York, extensions of the conflation error to those sources.

     The Second Amendment proposals of all three states were based on the original two-clause Second Amendment version in George Mason's U.S. Bill of Rights model. The Virginia convention's sole alteration of Mason's language was dropping the word “to” before “bear arms” in its first clause. [1] North Carolina adopted Virginia's proposals verbatim and refused to ratify the Constitution until they were added. [2]
1 [See Part 1 for Virginia's version and below for Mason's original.]
2 [The Origin of the Second Amendment, pp.503-506]
     New York's Second Amendment predecessor, found in its ratification declaration of rights, was very similar to the other two states. It was based directly on Mason's original model. This resulted from George Mason providing New York's Antifederalist leaders a complete copy of his model for the U.S. Bill of Rights developed early in the Virginia Ratifying Convention, which met from June 2 through June 27, 1788. 

     The documents addressed below consist of Mason's U.S. Bill of Rights model [3], a partially developed list of Mason's "other" amendments [4], and letters from Patrick Henry, William Grayson, and George Mason, Virginia Convention Antifederalist leaders, to John Lamb, Antifederalist leader in New York City. These sources independently confirm the conflation error Justice Stevens' Heller dissent is founded upon.
3 [The Origin of the Second Amendment, pp.388-390]
4 [Mason Papers, Vol. III, pp.1055-1057]
     John Lamb sent letters to Mason, Henry, and Grayson seeking cooperation on a bill of rights and other amendments to the U.S. Constitution between Antifederalists in the New York and Virginia conventions. These were delivered on June 7, 1788, and all three Virginians responded affirmatively to Lamb on June 9. Mason, chairman of the amendments committee, included the complete model Bill of Rights and partial list of the amendments then under development with his letter. These letters and documents were transmitted to Lamb by Eleazer Oswald, the same special courier Lamb employed to hand deliver his requests regarding cooperation to the Virginians.

[For historical facts not specifically cited in this part, see the history and citations regarding Virginia-New York Ratifying Convention amendment cooperation found in The Founders' View of the Right to Bear Arms, pp.131-147]
     Patrick Henry's letter described the documents sent to Lamb as follows: 

"We have concluded to send you by Colo. Oswald a copy of the Bill of Rights & of the particular Amendments we intend to propose in our Convention". 
[Mason Papers, Vol. III, p.1071 note]
     The Bill of Rights was finalized and consisted entirely of provisions taken from existing state declarations of rights. The particular amendments list was still under development and related to alterations of specific parts of the proposed U.S. Constitution.
     William Grayson emphasized the incomplete nature of the particular amendments list:
"some of our proposed amendments are finished in the Committee; the others will be forwarded as soon as agreed on". 
[Mason Papers, Vol. III, p.1071 note]
     The particular or "other" amendments list sent to Lamb consisted of thirteen unnumbered provisions, five of which were not even included in the final twenty article version Patrick Henry introduced in Virginia on June 24. The amendments sent on June 9 were very much in a developmental state because analyzing, discussing and agreeing upon possible amendments to particular Constitutional provisions took considerable time and continued throughout Virginia's month long convention.
     That the Bill of Rights was completed very early in Virginia's convention, probably the first day or two, is not surprising because Mason himself had described the speed with which one could be developed the previous year in the Federal Convention:
“He wished the plan had been prefaced with a bill of rights, and would second a motion, if made for the purpose. It would give great quiet to the people, and, with the aid of the state declarations, a bill of rights might be prepared in a few hours". 
[The Origin of the Second Amendment, p.12]
     Mason's 1788 Bill of Rights sent to Lamb fit this description exactly as it was essentially a copy of the 1776 Virginia Declaration of Rights with some added provisions from other state declarations.
     The Bill of Rights model's original two-clause Second Amendment predecessor sent to John Lamb on June 9 read: 
“17. That the People have a Right to keep & to 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;” 
[The Origin of the Second Amendment, p.390]
     Mason's June 9 letter to Lamb mentioned several parts of the Constitution to be addressed by his amendments committee in the future. This information, just as that in Part 1, establishes the direct conflict between the Founders' understanding and the Heller dissent argument regarding Second Amendment intent due to conflation.
"The Judiciary, the exclusive Legislative Power over the ten Miles Square, and the Militia, are Subjects to which our Attention will next be turned, and we shall communicate the Result of our Deliberations with all possible Dispatch." 
[Mason Papers III, p.1058]
     Mason and the amendments committee members understood they had addressed no amendments of the Constitution's militia powers as of June 9, and that none were included among the documents sent to John Lamb. The fact that the original two-clause Second Amendment predecessor was sent to Lamb as part of the model Bill of Rights on that date clearly indicates it was not understood by its framers as relating to amending the militia powers, which is the erroneous view advanced in Justice Stevens' dissent. These facts document and further exemplify the direct conflict between the founders' view of the Second Amendment and that advanced by the dissenting Heller justices.
     The period evidence presented here is entirely consistent with that in Part 1, and it independently verifies the conflation error the Heller dissent is based upon. As a result of this erroneous historical foundation, the dissenting Heller justices treat all period historical sources with well regulated militia language as support for their argument.
     Every Revolutionary and Ratification Era bill of rights predecessor of the Second Amendment with well regulated militia language is presented somewhere in the Heller dissent as supporting its opinion of intent. Since the dissent view of period well regulated militia language is based on erroneous conflation, use of closely related historical examples results in repeated conflation errors. The only evidence offered to verify the dissenting justices assertions regarding intent are appeals to their own authority, another type of fallacious argument. The Heller dissent view of Second Amendment intent is an interwoven series of fallacious appeals to its own authority based on error of fact due to conflation. The end result is a circular argument in which the very language at the heart of Second Amendment dispute, historical well regulated militia sources, are repeatedly offered as proof the dissent is factually correct.
     The Second Amendment intent argument in Justice Stevens' Heller dissent is entirely undermined by relevant period historical sources, which demonstrate it is founded on factual error.
[In Part 3, the understanding of Second Amendment framer George Mason regarding well regulated militia language will be examined, further documenting the sidelined American history nature of Justice Stevens' Heller dissent.]

The District of Columbia vs Heller Dissent - Part 1

Justice Stevens' Train Wreck

of American History

     The Supreme Court's 2008 District of Columbia vs Heller case resulted in a 5-4 split decision. Justice Scalia, writing the majority opinion, held that the Second Amendment was intended to protect the right of individuals to keep and bear arms. Justice Stevens penned a historically related dissent supported by Justices Breyer, Ginsburg, and Souter arguing it protected something entirely different, the militia institutions of the states. Justice Breyer, commenting on the Heller dissent in December of 2010, stated that "historically, the dissenters were right. And I think more of the historians were with us." [1] This last September, Justice Ginsburg, referencing the dissent indicated that her "view of the Second Amendment is one based on history." [2] The problem for the dissenting Heller justices is that the historical sources they quote not only fail to support their arguments, but instead directly contradict and prove them to be completely wrong.

   To begin unraveling the Heller dissenters strongly held views, the first point to determine is what specific period sources Justice Stevens and colleagues provide demonstrating the Founders understood the Second Amendment's purpose as they do? The sole period historical link in the dissent between the Second Amendment and any founder's understanding that it was intended to protect state militia authority is a quote of George Mason speaking in the Virginia Ratifying Convention on June 14, 1788. As Mason was chairman of the convention's Antifederalist amendments committee, he was the perfect choice for determining such understanding. [3] He developed the Bill of Rights and list of twenty "other" proposed amendments that were introduced by Patrick Henry and adopted by the Virginia Ratifying Convention.[4] North Carolina adopted the language of the Virginia proposals verbatim, [5] and New York included very similar declaration of rights provisions within its ratification based directly on Mason's proposals.[6] Thus, George Mason was author of the state ratifying convention model for the U.S. Bill of Rights - the ideal founder to quote regarding the intent of its provisions.

[3] The Founders' View of the Right to Bear Arms, p.132]

[4] The Origin of the Second Amendment, pp.450, 456-462]

[5] Origin, pp.503-508]

[6] Origin, pp.480-483; The Founders' View, pp.149-153]
     The subject under discussion by the Virginia Convention delegates on June 14 was the Constitution's Article 1, Section 8 powers - in this specific case, the militia powers. In order to link its understanding of the Second Amendment to that of Mason, the Heller dissent presents this selection from his speech warning that the states could be deprived of power to arm the militia under the new U.S. Constitution: 

“The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless—by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has the exclusive right to arm them.” 
[Heller Dissent, p.20]
     Following this quote, the dissent discusses the two-clause Second Amendment predecessors from the last three state ratifying conventions of 1788 as if they relate to the militia powers subject Mason was discussing: 
"But a number of States did propose to the first Federal Congress amendments reflecting a desire to ensure that the institution of the militia would remain protected under the new Government. The proposed amendments sent by the States of Virginia, North Carolina,and New York focused on the importance of preserving the state militias and reiterated the dangers posed by standing armies." 
[Heller Dissent, p.20]
     The next quote appearing in the dissent is Virginia's proposed Bill of Rights Second Amendment predecessor, described thus in the dissent: 
"The relevant proposals sent by the Virginia Ratifying Convention read as follows: “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.""

[Heller Dissent, p.21]
     Members of Congress developed the Second Amendment's clauses directly from this 1788 predecessor language. The dissenting justices clearly believe their Mason quote directly related to it. However, the dissenters' Mason quote actually contradicts their views. Why? Because the dissent ignores the fact that Mason did not propose the Second Amendment predecessor in his June 14th speech. In fact, he never mentioned any Second Amendment related predecessor or language in relation to the militia powers subject under discussion that day. He did, however, propose an entirely different amendment directly addressing the subject of his speech that the dissent simply ignored.
     This is the militia powers amendment Mason proposed on June 14: 
"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"

[The Origin of the Second Amendment, p.402. Mason's entire June 14 speech on this subject can be found on pp.400-402 in The Origin of the Second Amendment.]
     The dissenting justices not only overlooked Mason's actual proposal from June 14, above, they also completely ignored Article 11 in Mason's list of "other" amendments adopted by the Virginia Ratifying Convention that directly related to his militia powers proposal and speech: 
"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."

[The Origin of the Second Amendment, p.460]
     George Mason's June 14, 1788 speech not only fails to support the dissent view of Second Amendment's intent, it proves the Heller dissent to be completely wrong about its intent. Mason's state militia power proposal of that date directly related to Article 11 of the "other" amendments proposed by Virginia, not to the Second Amendment predecessor. Since Mason prepared all of Virginia's amendments, and because he indicated the Article 11 related protection was the only change needed to the militia arming powers, it is clear the Second Amendment proposal from Virginia was not understood by him as protecting state militia authority. In an erroneous attempt to demonstrate Mason's view matched those of the dissenting Heller justices, the dissent simply appropriated the clear intent of Virginia's Article 11 militia powers amendment and reassigned it to the entirely separate and distinct Second Amendment predecessor found in Virginia's list of Bill of Rights protections. Mason's speech makes no such connection and, in fact, contradicts any such link.
     Mason's quote in the Heller dissent is its sole piece of period evidence indicating the Founders and dissent share the same view of Second Amendment intent. The dissenting justices' misinterpretation of their Mason speech snippet conclusively demonstrates that the dissent view of Second Amendment intent is founded on an erroneous conflation of intent with an entirely different amendment. Mason's complete comments on June 14, 1788, demonstrate the Heller dissent historical arguments to be based on a foundation of factual error.

[The next post will examine and document an entirely separate series of historical sources from George Mason's activities in the Virginia Ratifying Convention that further document Justice Stevens' Heller dissent to be a train wreck of American history.]

The Mason Triad Context of Second Amendment Development and Purpose

Barriers Against Power in All Forms and Departments of Government 
Updated February 22, 2013
   Every existing state bill of rights in 1789 (eight instances) [The Origin of the Second Amendment, pp.747-780], and every proposal of bill of rights related amendments for the Constitution voted on by state ratifying conventions (seven instances) [OSA, pp.151, 260, 446, 459, 481, 505, 735], included a Second Amendment related provision, which was always accompanied with a limit on, or warning that a peacetime standing army was dangerous to liberty. In all cases where a complete bill of rights was involved (thirteen instances), there was a third linked concept closely related to the first two - that military forces were controlled by the "civil power".
   These universally present American bill of rights features were first identified in TheFounders' View of the Right to Bear Arms and dubbed Mason Triads, because their earliest iteration appeared in the 1776 Virginia Declaration of Rights written by George Mason. [FVRBA, p.4] Complete Mason Triads always had leading Second Amendment related protection, either well regulated militia of the people, or, the people have a right to bear arms style language. This was universally followed by language discouraging or limiting a standing army, with the final part subordinating government raised force to the civil power. The Mason Triads from the last four state ratifying conventions duplicated the Second Amendment related protection by including both the people have a right to keep and bear arms and the well regulated militia of the people style language as the leading triad part. [A complete listing of Second Amendment predecessor Mason Triads can be found online in Appendices I and II of The American Revolutionary Era Origin of the Second Amendment's Clauses.]
   While proponents of gun control have interpreted the Second Amendment, its predecessors, and related language appearing in Mason Triads as all about military matters entirely under government control, the exact opposite is actually the case. The purpose of Mason Triads was clearly "barriers against power in all forms and departments of Government" as James Madison described American bills of rights in 1789. [The Origin of the Second Amendment, p.657] He was introducing the predecessor of the U.S. Bill of Rights into Congress and his proposals, based directly on those barriers, were the foundation of the first eight amendments, including both clauses of the Second Amendment. [OSA. pp.654-661]
   Madison and Congress retained the leading Second Amendment related protections from state convention proposed Mason Triads but dropped the final two parts because their restrictions were substantially included in the original Constitution. Funding of armies was limited to two years and required legislative approval, the latter being the limitation specified in four of the original state Mason Triads. Additionally, all military force raised was under the direction of a civilian commander in chief, who was backed up by the power of the entire civil population that had authorized the Constitution, thus making it the supreme law of the land not only on paper, but also in fact. Since numerous period documents presenting Federalist and Antifederalist arms mantras emphasized the people were armed and could prevent tyranny, the only essential Mason Triad part needed as an addition to the Constitution was assurance for existence of an armed populace, which the Second Amendment amply provided. See the previous post, The Second Amendment and Founding Era Arms Mantras, below, for further information.
   Placing the Second Amendment into its appropriate Mason Triad period context as a barrier against government power greatly clarifies its meaning. It was never intended to protect state militia authority because its predecessors were understood as barriers to the power of the states. Instead, its purpose was to assure the people's control over the new Federal Government they authorized and any forces it might raise. This information fully explains the Second Amendment's references to a free state and the necessity of an effective militia of the people, who would be able to self-embody for organized defense with their own arms, because their right to possess and use arms was protected against any meddling by the government.
   The citizens in 1789 relied on flintlock firearms just as the soldiers of a period army. At that time, a standing army in time of peace was the face of tyranny. Today, the face of tyranny is just as common in the world, but is much more intrusive and dangerous, and is usually referred to as a police state. Americans have the constitutional right and duty to prevent the establishment of any police state in the United States. The people must keep their government under their control, which is accomplished, not by fighting, which is only a last resort, but by making certain that violations of the Constitution by those at the helm of government are challenged and reversed.
   In the modern world, government raised forces, whether troops or police, are not armed with flintlock firearms. Police forces always carry modern arms. The purpose of such arms is self-defense. Every American citizen is guaranteed the same right by the Second Amendment. In order for Americans to keep their government and its forces under their control, as the Constitution gaurantees, the people, at a minimum, have the right to keep and bear the same type of arms that police are provided. These arms would include modern pistols, shotguns, and rifles, especially, although not limited to, those chambered for the rounds designated for use by American troops.

The Second Amendment and Founding Era Arms Mantras

The People Are Not To Be Disarmed Of Their Weapons

Updated 
Arms mantras from the period when ratification of the new U.S. Constitution was underway were statements based upon the necessity of an armed population offered in support of, or opposition to, the new government's adoption. Of the previous seven posts immediately below, the first three present Federalist arms mantras from supporters of ratification (Noah Webster, Tench Coxe, and Zachariah Johnson), and the last three are arms mantras from Antifederalists (Federal Farmer, A Landholder, and George Mason), who opposed ratification for two main reasons - lack of a bill of rights in the Constitution and the new government's extensive military powers, which would lead to tyranny.

Federalists argued that the extensive military powers of the new government could not lead to tyranny and oppression because the people were armed and able to prevent that from happening. They routinely argued that the people or militia could not be disarmed, statements that were answers to contrary claims by their opponents. It was Federalists who argued against any amendments of the new Constitution, whether bill of rights proposals or other amendments to alter specific delegated powers. They adamantly opposed any alterations of the Article 1, Section 8 powers of Congress and never accepted a single one, especially after they gained control of the First Congress in 1789.

A bill of rights was not included within the Constitution because the Federal Convention of 1787 had unanimously voted down a bill of rights committee. Thus, since most Americans strongly supported a Federal Bill of Rights to limit government powers, Federalists were in the unenviable position of arguing against the need for one. Their arms mantras indicate that the Constitution's supporters based their entire polity on an armed population capable of controlling any forces that the government might raise to coerce the people. Note, however, Federalist arms mantras were not presented in support of protections like the Second Amendment to the Constitution since Federalists opposed all amendments (except when politically forced to accept them by their opponents).

Antifederalists completely agreed with their opponents that an armed population existed and that the people being armed was a necessity in the future to assure a free country. They feared that this essential situation would not continue to exist if the Constitution was ratified because the proposed Federal Government's powers were unrestrained, especially the military powers. Opponents of ratification argued these powers would allow the government to disarm the people in various ways, thus negating the essential control of the people over government raised forces. The Antifederalist arms mantra was generally used to argue for alteration of military powers. Proposals for limits on a standing army, guards against a select militia, and assurances that the states could organize, arm, and discipline their militia were all accompanied by Antifederalist arms mantras. 

The six Founding Era arms mantras presented below, and numerous others collected in The Origin of the Second Amendment, clarify why Federalist leaders and the overwhelmingly Federalist First Congress were willing to accept Antifederalist supported and developed Bill of Rights protections for individual rights taken directly from state bills of rights, like the Second Amendment's protection for an armed populace, which all understood as essential to free government, but they were unwilling to change the Federal Government's military powers one iota. These arms mantras also help us understand the fundamental purpose of the Second Amendment - constitutional level protection for the people's control over government employed forces that might be used for future oppression of the the people. 
[Further information on Founding Era arms mantras and the context of their use can be found in The Founders' View of the Right to Bear Arms, pp. 92-111. The next post will explore the fundamental purpose and full context of Second Amendment predecessors found in Mason Triads.]

Second Amendment History Online - George Mason's Antifederalist Arms Mantra

The Militia May Be Here Destroyed...By Rendering Them Useless - By Disarming Them
[George Mason employed the Antifederalist arms mantra in a speech to delegates of the Virginia Ratifying Convention on June 14, 1788 in support of an amendment of Article 1, Section 8 militia powers. At the end of this speech he stated the specific amendment sought and the fact that it was the only one needed for this part of the Constitution. Mason clearly equated the militia and the people, and it is evident that he thought an armed populace was the proper defense of liberty against government raised military force. Excerpts from this speech have often been used by modern control advocates to link militia powers amendment discussion with Second Amendment development and intent, even though the subject under discussion was not adding Bill of Rights protection, which preexisted the writing of the Constitution, but alteration of a specific power that did not exist until the Constitution was written. The amendment Mason specified was not the Second Amendment's predecessor. Further information on this point can be found in Error as Foundation for the Mother of All Ideological Divides.] 
"There are various ways of destroying the militia. A standing army may be perpetually established in their stead. I abominate and detest the idea of a government, where there is a standing army. The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless - by disarming them. 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, &c. . . Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army. . . .

But when once a standing army is established in any country, the people lose their liberty. When, against a regular and disciplined army, yeomanry are the only defence, - yeomanry, unskilful and unarmed, - what chance is there for preserving freedom? Give me leave to recur to the page of history, to warn you of your present danger. . . Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man [Sir William 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. . . Why should we not provide against the danger of having our militia, our real and natural strength, destroyed? . . .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 SecondAmendment, pp.401-402]

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]

FOX's Hannity Show Hits Snag with Quotes of the Founders

     What is it with Sean Hannity and the producers of his show on the Fox News Network? We know they are pro-rights, no doubt about that. Twice in recent weeks, while discussing Second Amendment infringement issues related to gun control, Sean has presented quotes of Founders that were not accurate.
     First, on the Friday evening, January 4 Hannity show, he used a quote of George Washington regarding firearms and liberty teeth that is undoubtedly bogus. Reliable historical evidence that it is actually a quote of Washington has never been found. If anyone has a verifiable source for it, please provide it.
     Then on the Tuesday, January 8 show, Sean used a George Mason quote that was inaccurate. Sean quoted Mason asking "What is the militia?" in the Virginia Ratifying Convention. It should be noted that Attorney General of the U.S. John Ashcroft used the same inaccurate quote when he adopted the individual rights interpretation of the Second Amendment as the official understanding of the Justice Department during the Bush Administration.
     Period sources indicate Mason was actually asking "Who are the militia?", and that he went on to answer his own question, "They consist now of the whole people, except a few public officers." [The Origin of the Second Amendment, p.430] This may be considered an overly picky point, but the Founders understood the militia to be the people (who, they), not an abstract entity (what).
     George Mason was, in fact, the dynamo behind the Ratification Era push for a Federal Bill of Rights and the Second Amendment. Readers can find out a lot more about George Mason's development of Second Amendment language at my post, Root Causes of Never-Ending Second Amendment Dispute - Part 20, which examines essential American history relating to Mason that is ignored in the professional historians' Heller case brief to the U.S. Supreme Court.
     Those who know me will vouch for my interest in quotes of the Founders, and my efforts to make accurate versions of them available to everyone. Of what value are inaccurate "quotes"? They can be misleading, and they tarnish the reputation of those who present them.
     Back to Hannity. If someone reading this has contact with Sean or any of the show producers, please suggest that in the future it would be beneficial if they check the accuracy of the Founders' quotes they intent to present on the show.