How Professional Historians Destroy Historians' Credibility

Fake Second Amendment History

[Updated April 26&27, 2017]
     Jonathan Gienapp, an assistant professor of history at Stanford University, recently wrote a long article urging all historians to oppose confirmation of Neil Gorsuch as an Associate Justice of the U.S. Supreme Court. What was the basis for this opposition? A disagreement between a "few historians" (including Professors Gienapp, Jack Rakove, and Saul Cornell) and originalists in the legal community regarding which of the two professions can best understand historical materials from the Founding Era. Reading Professor Gienapp's article, one is left with the distinct impression that originalists, such as former Supreme Court Justice Antonin Scalia (and now Justice Gorsuch) eschew any reliance upon history in cases involving the language and intent of the U.S. Constitution. Gienapp's view is that such originalists "have escaped history".

"How originalists have exploited their new fortifications to repel historical expertise is best captured in their reaction to the so-called historians’ amicus brief filed for the Supreme Court in conjunction with the controversial Second Amendment case from 2008, District of Columbia v. Heller... That case—which centered on a D. C. handgun ban—ultimately turned on the original meaning of the amendment. And historians reached the diametrically opposite conclusion from the one advanced by Justice Scalia in the Court’s majority opinion...."
[The above link includes my direct response to Professor Gienapp's article.]

     There are multiple historical problems with the views expressed in Professor Gienapp's article, and some of them will be addressed in this post. First is the assumption that the Heller historians not only got the Second Amendment's history right, but also backed up their conclusion with proof based on primary period sources, and took all of the relevant period sources into account in their examination of the subject. Along with that assumption comes the corollary assumption that it must be Justice Scalia and the Heller majority involved in any historical error. The second problem with the article is the assumption that only historians can accurately get at historical reality, with its corollary that everyone else must rely upon professional historians' views because of their academic credentials. A third problem is that, if these assumptions are incorrect, and they are, then reliance upon the historians' Heller brief as poster child for politicized action against a judicial nomination is historically foundationless politicization of the profession, which it is.
     Neither Justice Scalia for the majority of the Court, nor Justice Stevens in his Heller dissent, cited the professional historians' brief for American Bill of Rights history, with Stevens citing it only once about the English Bill of Rights. There are at least two reasons for lack of reliance upon it by the justices in Heller. First, there is very little actual American Bill of Rights history to be found in the historians' brief, and second, the brief contains numerous errors of fact, erroneously conflated history, and extensive irrelevant material as far as the actual historical point in the Heller dispute. Justice Stevens dissent, which largely followed right along with the historians' assertions in their brief, still had to directly contradict it twice regarding specific historical points. The historians' Heller brief was so historically unreliable that direct citation regarding American history was not possible even by its supporters in the Supreme Court's minority.
     One example of that historical unreliability is a multiple error found in just one assertion in the brief regarding how many of the eight early states with declarations of rights made them part of their state's constitution:

“In only two states (Pennsylvania in 1776, Massachusetts in 1780) were they made part of the actual constitutions.”

     This claim in the historians' Heller brief is contradicted multiple times in three of the period sources actually under discussion by the historians. Three states, North Carolina 1776, Vermont 1777, and New Hampshire 1784 copied various features of the two named states making their declarations of rights part of their constitutions. Vermont alone had three different designations to that effect within its constitution. None of the fifteen professional historian signers of the Heller brief were familiar enough with the relevant period sources to recognize their assertion was in direct conflict with historical reality, a point analyzed and documented in this post at this blog.  Is this what Professor Gienapp refers to as "historical expertise"? This intellectual embarrassment of the first order from the historians' brief is just the tip of an iceberg of such errors, and those go hand in hand with a fundamental conflation error mixing up Founding Era Second Amendment Bill of Rights predecessors with entirely unrelated militia powers amendment history, as analyzed and documented in this post.
     Reliance upon the historical accuracy of the professional historians' Heller brief is just as historically risky and illogical as reliance upon the historical accuracy of Michael Bellesiles book, Arming America, for which a Bancroft prize was awarded and later rescinded. The difference between the two situations being the Heller brief historians are not accused of veracity problems. Instead, they are clearly not overly familiar with relevant period sources, and they appear to have sought out and advanced historical claims that support a preexisting belief regarding the disputed point in the Heller case. There is no doubt that the Heller historians believe the faulty information they provided to the Supreme Court to be accurate. There is also no doubt their brief is the perfect example of History Office Law, twisted history in a legal argument from historians. The opposite, twisted history in a legal argument from lawyers is Law Office History.
     The errors, conflated history, and missing essential information of the historians' Heller brief were analyzed and documented here at On Second Opinion Blog in early 2009 in a twenty-four part series, Root Causes Of Never-Ending Second Amendment Dispute. This Blog was established specifically to publicize historically erroneous assertions by professional historians, Supreme Court justices, and various authors concerning the Second Amendment. The Fisking Index Page link at the top of this page provides direct one click access to each of the twenty-four parts of the series for those who really want to know the details of Second Amendment history and how the professional historians managed to make such a train wreck of American history from it.
     The study of history is the study of period documentation. Historians' writings about history are not history, they are historiography, writings or stories about history by historians. Confusing history and historiography is a mistake. The suggestion by Professor Gienapp that somehow Justice Scalia has "escaped history" regarding the Second Amendment in the Heller case is patently absurd. The Origin Of The Second Amendment, the only comprehensive reprint of source period documents on the subject was the most cited historical collection among the briefs to the Court, and it was cited by both sides in the dispute as well as the majority opinion from Justice Scalia. The Origin Of The Second Amendment was cited in the Circuit Court for the District of Columbia's Parker decision (2007), which was appealed to the Supreme Court as the Heller case and upheld in the Heller decision, and was also cited in the prior Fifth Circuit Court of Appeals U.S. vs Emerson decision (2001). There were over a hundred such citations in the Emerson decision, which itself was cited in the Parker decision. Thus, there is an extensive background of period historical evidence in linked Federal cases that does not appear within the Heller decision itself.
     Also, a newly published history of the Second Amendment, The Founders' View Of The Right To Bear Arms, which was based directly on the period sources reprinted in The Origin Of The Second Amendment, was cited to the Supreme Court in numerous Heller historical briefs. The Founders' View Of The Right To Bear Arms traces and documents every aspect of Second Amendment related terminology and development from Colonial Period use through the Revolutionary and Founding Eras until the final version was ratified by the requisite number of state legislatures.
     All Supreme Court justices in the Heller case had equal opportunity to examine this entire historical record, which was placed directly before them right along with the new, clear history linking the essential information into a logical whole. Most of the justices in the Heller case paid attention to that record, making certain their ruling was consistent with it. By the way, the historical source collection and history described above did not originate with professional historians, but instead with the author of this blog, an avocational historian. This information makes clear it was not the case Justice Scalia "escaped history", but rather that he escaped the faulty historiography and "historical expertise" of professional historians wishing to impose their fallacious opinions upon the Court.
     A more historically accurate view of this affair is that it was Justice Stevens and those supporting his dissenting Heller opinion who "escaped history" by relying on the Heller historians' unfounded assertions and erroneous history. Justice Stevens dissenting opinion suffers from most of the historical defects found within the historian's brief itself, with some of the historical problems made worse. It was the professional historians brief that escaped history and provided the Court with an unsupportable alternative historical outlook that was at odds with American historical reality.
     Professional historians are supposed to study all of the period sources and rely upon them to explicate historical reality. Professor Gienapp, by accepting without question the Heller case brief from Professors Rakove, Cornell, and others, at least as far as the Second Amendment is concerned, is complicit in helping to mold history to fit a certain belief that is at odds with the historical record. Most people wish to understand their country's actual past rather than be indoctrinated with historians' unfounded opinions about it. Completely failing to do what historians are supposed to do is how the profession destroys its own credibility.

Professor Jack Rakove's Intellectual Embarrasments

Jack Rakove, professor of history at Stanford University, who was one of fifteen PhD. holding academic amici supporting Washington DC's gun control laws in the Heller case, made a most interesting comment this Fourth of July. It appeared at The Browser and included a criticism of U.S. Supreme Court Justice Scalia's decision in that case.

"I submitted a brief in the District of Columbia vs Heller case, from three years ago. That was the case in which the Court struck down a 32-year-old handgun ban as incompatible with the Second Amendment. I think there are intellectual embarrassments of the first order in Justice Scalia's opinion."

Those who have read the series Root Causes of Never-Ending Second Amendment Dispute at this blog will be much amused by the professor's claim. As documented in the 24 posts of the Root Causes series, Prof. Rakove's Heller brief brimmed with errors of historical fact and left out the most relevant information for understanding the Second Amendment's intent. It is Prof. Rakove's brief to the Supreme Court that contains "intellectual embarrassments of the first order". There were so many errors of historical fact in the Rakove brief that the historical dissent from Justice Stevens only cited it once, and that was for a point relating to the English Bill of Rights.

The very first post of this blog, which was Part 1 of the Root Causes of Never-Ending Second Amendment Dispute series, documents the first of numerous Rakove intellectual embarrassments in the Heller case.

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 17

Ignored Facts, Unfounded Assertions, and the Rakove Professional Historians' Heller Amicus Brief
Updated May 8, 2009

After their presentation of militia powers development in the Federal Convention, which was discussed below in part 10, the historians proceeded to discuss militia matters relating to arms during the ratification period while virtually ignoring the widespread and intense bill of rights dispute from that period. That there were incessant demands for the protections found in the state bills of rights, all of which included Second Amendment predecessors, goes entirely unmentioned by the historians, who are supposedly presenting the history of a Bill of Rights provision. Many of the historians' statements regarding the ratification era debate are completely contradicted by period sources and in some cases by evidence from within their own brief. For an example of the latter, take this statement from the historians:

Assertion #8
"Discussion of citizens' access to firearms during the ratification debates of 1787-1788 focused nearly exclusively on the comparative merits and risks of a standing army or the militia." [p.18]

Fact Checking Assertion #8
The above assertion is directly contradicted by the historians' own brief because they distinctly noted that the first three arms protecting provisions addressed in state ratifying conventions, which were treated out of order later in their brief, related to "private ownership of firearms." Those three provisions were directly addressed in the previous three parts of this series by placing them back in their proper developmental order. None of these provisions were combined with references to a well regulated militia, something the historians have used to misinterpret the purpose of the right to arms provisions that well regulated militia references were later combined with. The historians separated the three early arms proposals from any connection with the Second Amendment even though they all clearly protected the right of the people to keep their own arms. Pennsylvania's provision prevented individuals from being disarmed, as did Samuel Adams' proposal and that adopted by the New Hampshire Ratifying Convention.

Further discussing ratification debate about "the comparative merits and risks of a standing army or the militia," the historians stated that:

Assertion #9
"these exchanges treated the militia not as the disembodied mass of the people, but as a legal institution subject to concurrent national and state administration." [p.19]

Fact Checking Assertion #9
This statement is directly contradicted by numerous period sources, only a few of which are presented here. The use of the term militia in Hamilton's The Federalist #29, a source referred to on the previous page in the historians' brief, directly refutes their statement. Hamilton provides three different definitions of the militia in this text alone:

"the great body of the yeomanry and of the other classes of citizens"
"the people at large"
"the whole nation"
[OSA, pp.197,198]

Contrary to the historians' claim, Hamilton's descriptions treat the militia as the mass of the people, not as an institution. For another Federalist's viewpoint, look back at part 12 and Tench Coxe's Federalist Mantra (below). Coxe describes the militia as "ourselves" in an article addressed to "the Citizens of America." He also describes the militia as "the yeomanry of America from sixteen to sixty." Were the yeomanry of America from sixteen to sixty an institution? Would one describe an institution as ourselves, meaning the citizens of America?

Also in direct conflict with the historians' claim, this time from an Antifederalist, is George Mason's statement in the Virginia Ratifying Convention:

"Who are the militia? They consist now of the whole people, except a few public officers." [OSA, p.430]

Mason's view also contradicts the historians since he treats the militia as the mass of the people, not as an institution.

Conclusion - Assertions #8 and #9 are Both Erroneous
It is not true that discussion of citizens access to firearms during the ratification period focused nearly exclusively on the merits and risks of a standing army or the militia as the historians asserted. As noted by the historians themselves, proposals protecting private possession of arms were discussed and voted on in a number of the state ratifying conventions. It is also not true that such discussion during the period treated the militia as an institution rather than as the mass of the people. Alexander Hamilton's usage in The Federalist #29, Tench Coxe's usage in A Pennsylvanian III and George Mason's usage in the Virginia Ratifying Convention all directly contradict this assertion by the historians. A considerable amount of other period historical evidence also contradicts the historians regarding these two points (see 800 pages of period sources in The Origin of the Second Amendment for numerous other examples).

Those relying on the historians' brief for their understanding of period sources and history should once again consider the fact that, in spite of their claims, the historians are either not overly familiar with relevant period sources, or they are so biased as not to notice when those sources contradict their own statements. What is more likely is that both of these possibilities are in play.

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.

Challenge to Supporters of the Heller Dissent

Self-Check Accuracy of the Historians' Heller Amicus Brief
[Updated January 20th, 2012]

This is a challenge to those who believe that the Heller case was wrongly decided. If you are one of those who think that the four dissenting U.S. Supreme Court justices in the case had the historical facts on their side and made the better argument about the Second Amendment, here is the challenge. Verify for yourself whether statements in the professional historians' amicus brief, which the dissenting justices based their history upon, are supported by historical facts.

All that is necessary is to read the statement from the historians' brief below, then click on the direct page links to Google Books posting of F.N. Thorpe's Federal and State Constitutions to verify the accuracy of the statement in the historians' Heller amicus.

Here is the specific statement in the historians' brief to self-check for accuracy:

"In only two states (Pennsylvania in 1776, Massachusetts in1780) were they [state declarations of rights] made part of the actual constitutions.” [pp.9-10]

First, check North Carolina's 1776 Constitution, Article XLIV, page 2794 of Thorpe, Volume 5. This article of the constitution specifies "That the Declaration of Rights is hereby declared to be a part of the Constitution of this State, and ought not to be violated, on any pretense whatsoever." This fact directly contradicts the statement in the historians' brief.

Next, check Vermont's 1777 Constitution, Section XLIII, page 3748 in Thorpe, Volume 6. This section also specifies "That the declaration of rights is hereby declared to be part of the Constitution of this State, and ought never to be violated, on any pretense whatsoever." Both North Carolina's and Vermont's provisions were copied almost verbatim from the 1776 Constitution of Pennsylvania. These provisions make two direct contradictions between period historical sources and the above quoted statement found in the professional historians' Heller brief.

Perhaps another contradiction is needed to emphasize the point being made here. If so, check the New Hampshire 1784 Constitution on page 2453 of Thorpe, Volume 4. [This link no longer works.] Page 2453 of Thorpe, Volume 4, indicates that New Hampshire's 1784 "Bill of Rights" is "Part I" of its Constitution, and page 2458 indicates that "PART II" is "The Form of Government". These facts also directly contradict the statement made in the Rakove historians' brief that only the declarations of rights of Pennsylvania and Massachusetts were "made part of the actual constitutions."

Such glaring and recurring contradictions between relevant historical documents and the simple claim made in the brief call into serious question the reliability of the historians' amicus, which is a foundation of Justice Stevens' Heller historical dissent.

It cannot be conceived that these fifteen historians have purposefully misrepresented the point of their statement to the U.S. Supreme Court. The only alternatives are that the historians may not be as familiar with relevant period history as claimed in the brief, or the historians' statement is a misprint. However, the latter is not the case because Professor Jack Rakove of Stanford University, the author of the brief, made and emphasized exactly the same erroneous assertion to Professor Eugene Volokh of UCLA during a Bloggingheads TV diavlog shortly after the Heller decision. [at 31:40 in the presentation]

These considerations narrow down to one the reason for the error in the professional historians' brief. They are actually not overly familiar with the most relevant historical sources for understanding the Second Amendment's history, and, as a result, the historians' Heller amicus brief is historically unreliable.

For those willing to accept what their own eyes can see and consider the possibility that Heller was rightly decided because the dissent relied on what is inherently unreliable, read the Root Causes of Never-ending Second Amendment Dispute series posted on this blog. It demonstrates that the above contradiction, analyzed in part 1, is merely the tip of a huge iceberg of erroneous statements, internal contradictions, fallacious arguments, and off-track history that make up the historians' Heller amicus brief.

Root Causes of Never-ending Second Amendment Dispute - Part 14

Fallacious Arguments, Rearranged History, and the Historians' Heller Amicus Brief

In order to further bolster the militia-centric argument in the historians' brief and divert attention away from the Second Amendment's actual Bill of Rights developmental history, Prof. Rakove presents the arms proposals made within state ratifying conventions in a substantially different order than that in which they were developed. The last two states to ratify, Virginia and New York, which included both right to arms and well regulated militia language in their proposals, are presented first, even though they are from late June and early July of 1788. The first three conventions, Pennsylvania, Massachusetts, and New Hampshire, which only included right to arms related language, are presented last and in reverse chronological order even though they are the earlier proposals. North Carolina's proposal including the exact provision as Virginia is ignored completely even though it was developed last.

Prof. Rakove's discussion of the right to bear arms proposal in Pennsylvania's 1787 Ratifying Convention, which was the first developed, is located dead last among such period proposals even though it was actually developed first ahead of five other arms related bill of rights proposals. This first-formed last-discussed approach seriously interferes with understanding the actual historical development of the political struggle to obtain a federal bill of rights during ratification and results in a barrage of erroneous statements in the brief. For this reason, all of Professor Rakove's arguments about specific arms protections proposed in state ratifying conventions are analyzed in this series in their proper chronological order of development.

The opening brief statement about discussion of the earliest arms provisions from the ratification era is:

"In contrast to the numerous discussions of the militia during the ratification debates, explicit references to the private ownership of firearms were few and scattered. The three noteworthy statements come from the Pennsylvania, Massachusetts, and New Hampshire conventions." [p.22]

After this statement, the brief addresses middle conventions, which will be discussed in a future post in proper developmental order. The first state ratifying convention was called by Pennsylvania and assembled in late November of 1787 at Philadelphia. One-third of its delegates opposed ratification of the Constitution, a major reason being lack of a federal bill of rights. Delegate Robert Whitehill proposed fifteen amendments to the Constitution that he described as a “bill of rights.” A Federalist majority of two-thirds opposed all of his proposed amendments. The arms related proposal of the minority is misquoted in the historians' brief, and only the first clause of the article containing it is presented. Thus, the entire Article proposed by Whitehill is presented here:

"7. That the people have a right to bear arms for the defense 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; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power." [The Origin of the Second Amendment, p. 151]

The above provision is virtually a verbatim copy of Pennsylvania's 1776 Declaration of Rights Mason Triad (see Part 7) with language added to the Second Amendment predecessor. Also, the same Robert Whitehill who introduced this provision in 1787 helped write the 1776 original version. Prof. Rakove conveniently ignores these relevant facts, making no connection to the earlier version of this bill of rights related language.

Prof. Rakove states that it would be an incorrect reading of Whitehill's provision to accept it as evidence “that the founders thought of the right to bear arms as ensuring a private right to possess weapons.” [p.23]

The first problem for Prof. Rakove is that this statement directly contradicts his previous statement about Pennsylvania's convention related provision presented above.

The five reasons given in the brief to support this statement about Whitehill's proposal are examined below. These are all diversionary fallacious arguments.

“First, the dissenters who endorsed this proposal comprised only a third of the Pennsylvania convention."

The number who supported or opposed Whitehill's amendment indicates nothing about what its words indicate about the founders view regarding private possession of arms. This argument is a logical fallacy. Pennsylvania's Federalist majority, in addition to opposing Whitehill's Second Amendment related proposal, also opposed amendments relating to provisions found later in the First, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Amendments of the U.S. Bill of Rights. This brief entirely ignores the Bill of Rights related import of Federalist opposition to rights protections and the political struggle by Antifederalists in support of a bill of rights throughout ratification.

“Second, as previously noted, the reference to “the defense of themselves and their own state” had particular connotations in Pennsylvania, tied not to an individual’s right to defend his home, but to the colonial government’s failure to organize effective militia units prior to independence.”

As demonstrated in Parts 2 and 3 of this series, Pennsylvania history relative to a right of individual arms possession directly contradicted the historians' opinions as stated in their brief. Besides, this diversionary claim cannot explain away the provision's clear “no law shall be passed for disarming the people or any of them” language. If people have a right to bear arms for defense and killing game they must have a private right to possess arms. This argument is not only historically unfounded but also fallacious.

“Third, the proposed formula against "disarming" leaves ample room for police-power regulation by recognizing "real danger of public injury from individuals" as a legitimate basis for public action."

Rakove's third argument also does not back up the professor's specific claim about what the founders understood based on the provision and is thus fallacious. Whitehill's language could not be clearer that private possession of arms was guaranteed except for convicted criminals and extremely dangerous individuals.

"Fourth, the dissenters appeared disinclined to push this right too far. There is no further discussion of the private use of firearms in the explanatory passages of the Dissent." [p.24]

The lack of further discussion in a subsequent publication does not back up Professor Rakove's claim about what the language shows about the founders view on private ownership of arms. This is the fourth fallacious argument in a row about the same point.

"Fifth, and most important, these two clauses fell stillborn on the larger debate that continued to rage for months. . . . Had Anti-Federalists continued to want to push for the constitutional
protection of firearms, ample time remained to muster support in the nine states yet to act on the Constitution. Once published, however, these clauses of the Dissent were politically inert. If the Pennsylvania dissenters tried to place the question of a private right to arms before the body politic, their fellow Americans declined their summons." [p.24]

In direct contradiction to these statements, there were in fact five subsequently developed arms provisions in state ratifying conventions after Pennsylvania's, all of which included period language commonly understood as protecting an individual's right to possess and use arms. The two directly following Pennsylvania's were described by Prof. Rakove himself as relating to “private ownership of firearms” (see first quote at top of post).

This fifth argument connsists of a set of fallacious statements, none of which can enlighten regarding whether Whitehill's provision was understood as a private right to possess weapons or not. These statements, which appear directly before the final sentence about the ratification era in the brief, divert reader attention entirely away from the actual historical facts. Thus, not only are Prof. Rakove's final arguments above fallacious, they are directly contradicted by the period evidence once again and result in another complete inconsistency by Professor Rakove within the historian's brief.

The five arms provisions from subsequent conventions mentioned above will be carefully examined in following posts as numerous additional historical errors, inconsistencies, and fallacious arguments are exposed in the historians' Heller amicus brief.

Root Causes of Never-ending Second Amendment Dispute - Part 13

Professor Jack Rakove and the Historians' Heller Amicus Brief

For a slight change of pace, this post looks at who wrote the historians' amicus brief and examines two accurate statements within it to see exactly how such references are used in support of the historians' grotesquely inaccurate argument.

This series has been very harsh in its criticism of the fifteen academics who signed on to the historians' Heller amicus brief. That will not change. However, the fact is that only one of them actually wrote the brief, probably with help from a few of the co-signers. Most of those who signed probably had little or no input to the brief, and it is likely that a few never even read it, adding their support based entirely on the historical reputation of the author, Jack Rakove. Rakove, professor of history at Stanford University, has taken credit (or blame, depending on your viewpoint) for writing the amicus brief submitted to the U.S. Supreme Court by fifteen historians supporting Washington DC's gun ban in the Heller case. In the future, this brief will be described as either the Rakove brief or historians' brief.

The brief's citation to Gordon S. Wood's book, The Creation of the American Republic, 1776-1787, is used in support of the statement that legislative supremacy was the leading principle of the new American state governments. Wood did state that "their legislatures represented more than the supreme lawmaking authority in their new states." [p.162]

Since the Rakove brief presents this argument and the Woods citation immediately prior to a series of erroneous statements claiming that the state declarations of rights did not have constitutional status nor were they legally binding upon state legislative powers, it appears that Woods generally backs up the Rakove brief's argument. They seemingly agree on the legislative supremacy idea. However, elsewhere in Woods book, he completely contradicts the Rakove brief's argument that the state declarations did not limit state legislative authority, just as the period sources presented in Parts 1 through 3 of this series contradict it. [pp.271-273] The period sources are always better to rely on than secondary sources like Woods' history to determine the period understanding. However, when the argument in the brief is directly contradicted not only by the period sources but also by a specific secondary source cited in it, the term "unreliable" becomes a vast understatement for describing the historical value of the brief.

Even the most innocuous statements in the Rakove brief result in misleading information for the reader. An example is the fourth sentence after the Woods cite that refers to the state declarations of rights, indicating:

"They have also been faulted for being less comprehensive than modern readers might expect them to have been.2" [p.10]

This statement by itself is completely irrelevant although true. Virginia's Declaration of Rights did not protect freedom of speech so not all rights were included in every declaration. [OSA, pp.747-749] Footnote #2 provided in the brief, however, directs the reader's attention to two civil rights laws that do not contain a "right to arms" or "right to keep and bear arms" provision.

There are two very misleading aspects for any reader associated with this innocuous true statement and its footnote. First, comparing civil rights laws, which are alterable by statute law, to state declarations of rights that are not alterable by statute further denigrates the constitutional status of the declarations of rights, which the brief had already been denigrating erroneously. Second, shortly after this statement, the brief equates “well regulated militia” provisions with “right to bear arms” provisions in the state declarations. Since every state declaration of rights had one or the other, none were lacking in an arms related provision, even though some might not contain the exact language quoted in the footnote. This type of misleading information represents another problem of consistency within what is a very flawed brief. If well regulated militia provisions are the equivalent of right to arms provisions, as Professor Rakove claims in the brief, then regarding arms provisions, none of the state declarations of rights are "less comprehensive than modern readers might expect them to have been."