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.]

Uneven Stevens - Uneven Epstein

Richard Epstein, in an online article, Uneven Stevens, published by the Hoover Institutions' Defining Ideas Journal, praises retired Supreme Court Justice Stevens for some of his decisions, which he describes as "landmarks in the law." According to Epstein, one of his "ablest opinions is the dissent in the gun control case, District of Columbia v. Heller".

On the contrary, Stevens simply makes the historical facts fit his preexisting beliefs in Heller. As an example, the dissent quotes part of a George Mason speech in the 1788 Virginia Ratifying Convention, but the full Mason speech directly contradicts and undermines Stevens' entire dissent. Defining Ideas published my letter following Epstein's article in which I note this historical point and the fact that the law is in a sorry state indeed if the Heller dissent is "one of the landmarks in the law."