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.
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.]
