Historians Try to Sell Brooklyn London Bridge to U.S. Supreme Court - Part 6

More Error and Omission in the Professional Historians' McDonald Amicus Brief
[Updated February 3, 2010]

The first clause of the Second Amendment states:

“A well regulated militia being necessary to the security of a free State” [The Origin of the Second Amendment, p.744]

Here are the historians' related assertions and quote from a British source:

"The Founders did not limit themselves to borrowing the premise of the Second Amendment from English law. They also borrowed the Second Amendment’s preamble from England’s militia laws, for the Second Amendment’s “well regulated militia” language was inspired by the preamble of the 1757 Militia Act, which stated,

“Whereas a well-ordered and well-disciplined Militia is essentially necessary to the Safety, Peace and Prosperity of this Kingdom[.]"" [pp.35-36]

The only evidence in support of the historians' first assertion above was the claim that the arms provision of the English Bill of Rights and the Second Amendment had only one difference, the latter not being dependent on privileges of wealth or birth. A number of other major differences indicating the historians' assertion was erroneous were demonstrated in Part 1 of this series. In this post, the historians' claim regarding the extent that the Second Amendment is based on the Founders' borrowing from and being inspired by the British militia law is examined. Rather than simply accepting the historians' assertion based on superficial similarities between the two, an examination of their substantial differences is undertaken.

Compare the Second Amendment's first clause to the historians' quote of Britain's 1757 militia act above. The 1757 act has a dependent structure similar to the first clause of the Second Amendment, but shares only one noun with the Second Amendment, militia. Structure is inherently meaningless without words and is far from evidence of borrowing or inspiration. Besides, the Second Amendment's actual American predecessor, a Virginia proposal quoted below, is not a dependent clause but a simple declaration. The dependent nature of the Second Amendment's well regulated militia clause originated when James Madison wrote his version of the Virginia proposal, which was introduced into Congress in 1789, with that body further enhancing the language's dependent nature. [OSA, pp.654-655, 707, 712] Other than the historians' assertion, no period evidence from America is presented linking the Second Amendment to Britain's 1757 militia act. Thus, the dependent nature of Britain's 1757 militia act has nothing whatever to do with later development of the leading dependent clause of the Second Amendment. Considering the misquotes and errors of fact in their brief, as documented in previous posts of this London Bridge series, there are compelling reasons not to accept any undocumented assertions from these professional historians regarding Second Amendment history or intent. Every such claim requires careful examination, and any without supporting period documentation cannot be relied upon.

The historians' claim is that the British act and Second Amendment have similarities of meaning, not just of structure and terminology. But a militia act of Britain could not have the same intent as an American Bill of Rights provision, thus similarity of intent is out of the question, especially since no period evidence is provided to support this view. That leaves similarity of terminology to examine as the only apparent source of any borrowing and inspiration for the Second Amendment's first clause.

Examine the list of terms appearing in both provisions: a, well, militia, necessary, to, the

The only noun in the list of overlapping terms is militia. The important question that immediately arises is whether the British understanding of militia was the same as the American understanding of the term. This is where the historians' claim of borrowing and inspiration utterly fails, for the fact is there was a major difference between the understanding and use of the term militia in Britain and that in America during the founding period.

Britain's militia act established a system relying on a small fraction of the men as the internal source of defense for the kingdom. One reason for the small relative size of the militia was Parliament's imposition of high property qualifications for British militia members, qualifications that were even higher than for members of Parliament, as indicated in the following statement made in the House of Commons an a militia bill, November 15, 1775:

"Lord North, after paying great encomiums on this constitutional mode of defence [militia], replied to the last objection [concerning the smallness of qualifications] by observing, that qualifications were higher in the militia than for the members to sit in that House to make laws." [American Archives, 4th Series, VI, p.86]

Thus, Parliament established a small militia confined to the wealthy and upper classes as defensive support for the Kingdom, which was controlled by Parliament, and Parliament was controlled by the nobility and upper classes, the very upper levels of British society that membership in the militia was confined to. Restating, Britain was a class society controlled by a minority of the upper classes and was protected by a select militia whose members were part of the upper class minority that controlled the country. As for who provided the arms of Britain's select militia members, the militia themselves or the government, Sir George Savile had this to say shortly before the comments of Lord North quoted above:

"hitherto, he said, no man in this country could be armed without the consent of Parliament; the army were armed by Parliament; so were the Militia; but if this bill should pass, the military would be, or at least might be, armed by the King, without the consent of Parliament." [American Archives, 4th Series, VI, p.85]

In Britain, the only apparent way anyone could be armed was either by Parliament, or by the king if Parliament agreed to that. The existing select militia of Britain was obviously armed by Parliament.

Did Americans understand the militia as Britons did - a small fraction of the men, among the most influential and wealthy, who were provided with arms by the government and were the only internal support for government, which was controlled by a small minority of the influential and wealthy? Most certainly not. American militia laws, directly contrary to the British act, were intended to assure that all of the able-bodied free men generally obtained and possessed their own arms and could be relied upon for defense. These American militia laws were passed by largely representative assemblies in the various colonies and early states. Americans understood the militia of Britain to be a select militia that was unlike the general militia relied on in America. This understanding of militia was generally consistent throughout the colonial period and the founding of the United States. [See The Founders' View of the Right to Bear Arms]

Contrary to the historians' claim, the Second Amendment's well regulated militia language was actually borrowed from and inspired by a predecessor provision from the 1788 Virginia Ratifying Convention [OSA, p.459] and included this quote from Virginia's 1776 Declaration of Rights verbatim:

"SEC. 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". [OSA, p.748]

George Mason, who wrote this original, also wrote the model for the U.S. Bill of Rights as a leader of Antifederalists in 1788 Virginia. His Second Amendment related proposal included this well regulated militia language preceded by a direct quote of the Massachusetts Declaration of Rights language that "the people have a right to keep and to bear arms". [OSA, pp.390, 773] This much more relevant information on the Second Amendment's origin in state bill of rights restrictions on state governments is continually ignored in the historians' McDonald amicus while relatively unrelated material and erroneous information is funneled to the Supreme Court in order to becloud the subject, making it extremely and unnecessarily complex. The fact that six of these twenty-one historians also filed a brief in the previous Heller case, where they correctly noted that the Second Amendment originated in the Virginia Ratifying Convention, proves that the intention of this brief is to mislead the U.S. Supreme Court by diverting it from relevant American constitutional sources to largely irrelevant British sources.

During the political dispute over ratification of the Constitution, Americans understood the militia to be a reference to the "whole people, except a few public officers", as stated by Antifederalist George Mason in the 1788 Virginia Ratifying Convention. [OSA, p.430] Federalists also understood the militia to be not only conceptually, but literally based on the people. This is evident from Alexander Hamilton's description of the militia as "the people at large" in The Federalist #29. [OSA, p.198] Antifederalists, those who politically fought to obtain a bill of rights, often described a select militia as no different than a standing army, which was dangerous to liberty. In order to preserve liberty, what they wanted as part of the U.S. Constitution was a bill of rights that would protect the concept already found in every state bill of rights guaranteeing a defensively effective armed population. It is those state bill of rights Second Amendment progenitors that are the origin of the Second Amendment's two clauses, and it is those that the historians are purposefully diverting the Supreme Court well away from in their brief.

There certainly was nothing borrowed from or inspirational about the only other noun in the British 1757 militia act, Kingdom, as compared to the free "state" terminology found in the Second Amendment's first clause. A kingdom under Parliamentary control by the upper classes and claiming unlimited authority was exactly what Americans had just waged a successful war for independence against in order to establish the new free state constitutions and government limiting declarations of rights in America. Thus, contrary to the historians' claim, the British 1757 militia act quoted in the brief provides nothing other than slight superficial similarities to the Second Amendment's first clause. The nouns included in the two provisions, militia in each and Kingdom versus free state, have fundamentally different meanings. These two sources have different purposes, with terms having different meanings, and their structures, while similar, provide no information about inherent meaning. And as noted above, the similarity of dependent structure in the two is an artifact stamped on the Second Amendment by James Madison and Congress. The actual American predecessor of the Second Amendment's first clause Madison relied on was not a dependent clause, but rather a declaration quoted verbatim from America's first state declaration of rights.

Regarding the brief's extensive pre-1689 English history, which constitutes the largest part of the historians' argument, it is essentially irrelevant for understanding anything about much later American constitutional development, such as state bills of rights and the later U.S. Constitution and its Second Amendment containing Bill of Rights. For this reason, no attempt has been made to examine quotes or conclusions for accuracy in that early English material.

[NOTE: The brief under discussion in this London Bridge series of posts is more specifically described as that from English/Early American historians. The series is not complete, as there are other errors to be examined. However, there is a different McDonald historical brief that begs for attention here. It is distinguished from the above brief in that it relates to Pennsylvania and Early American history. The next post to appear will begin a new series dealing with errors in this different McDonald Pennsylvania related historical amicus.]

Historians Try to Sell Brooklyn London Bridge to U.S. Supreme Court - Part 5

More Error and Omission in the Historians' McDonald Amicus Brief

[updated January 26, 2010]
As documented in part 4 of this series, Americans understood the arms provision found in the English Bill of Rights to be protection for a natural right. A "very great Majority" "of the Freeholders and other Inhabitants of the Town of Boston" voted it as "the opinion of this Town" that the arms provision of the English Bill of Rights "is founded in Nature". Also, Samuel Adams, in defending the vote by Boston's inhabitants, stated that the English arms provision related to a "natural Right which the People have reserved to themselves, confirmed by the Bill of Rights, to keep Arms for their own Defence".

Boston's vote was related to that American understanding of a natural right to "keep" arms, which was bolstered by the English Bill of Rights and a militia law of Massachusetts requiring every man and householder to to obtain and always be provided with arms and ammunition. The response from Parliament to the inhabitants' vote indicates a desire on the part of the British that Americans not always possess arms and ammunition.

The second and third parts of this series provided documentation that the historians' claim "[h]istorical records show that the Second Amendment was unrelated to any seizure of colonists’ arms by British troops" was erroneous.

The historians assertion immediately following that claim, which is examined presently, stated:

"Not a single document – no declaration, petition, or piece of correspondence, public or private – references any claim that the British violated the colonists’ right to “have arms.” [p.36]

This statement is not only false, it is utterly preposterous. Examine the following excerpt from the Declaration of the Continental Congress, December 6, 1775:

"We condemn, and, with arms in our hands - a resource which Freemen will never part with - we oppose the claim and exercise of unconstitutional powers, to which neither the Crown or Parliament were ever entitled. By the British Constitution, our best inheritance, rights, as well as duties, descend upon us: We cannot violate the latter by defending the former: We should act in diametrical opposition to both, if we permitted the claims of the British Parliament to be established, and the measures pursued in consequence of those claims to be carried into execution among us. Our sagacious ancestors provided mounds against the inundation of tyranny and lawless power on one side, as well as against that of faction and licentiousness on the other. On which side has the breach been made?" [Delegates, II, 449; see FVRBA, p.59-60]

This is a complaint about violation by the British of all the "rights" protected "[b]y the British Constitution". Among those "rights" that Americans understood to "descend upon" themselves from "the British Constitution" was protection for the natural right of having arms. The fact that Americans had to defend all of those "rights" against claims of unlimited authority and British actions that repeatedly involved disarming Americans, eventually spawning the defensive hostilities mentioned above, directly contradicts the historians' view. Congress' earlier Declaration of the Causes and Necessity of Taking Up Arms specified that the seizure of arms from Boston's inhabitants was one of the causes of hostilities. [See Part 3] Those hostilities were engaged in to defend Americans' rights, one of which was to "have arms".

Americans referred to the provisions of the English Bill of Rights as "natural Rights", even though the British understanding described in Blackstone was of protections against the Crown subject to Parliamentary statute. This British understanding of legislative supremacy was also the basis of their claimed right to bind Americans in all cases whatsoever. The British understood the "have arms" provision to be one exercisable only under authority of government ("as allowed by law"). Americans understood the English Bill of Rights "have arms" protection as a natural right simply being protected in the English document.

The historians brief attempts to interpret an American Bill of Rights provision based on the British understanding of the English Bill of Rights. This is a major flaw that underlies everything presented in the brief because Americans rejected British authority and the British form of government. In their place, Americans established new state governments with constitutions containing bills of rights protecting the people against government violation of their natural rights. The historians never mention the state bills of rights, which are American revolutionary era inventions that were intended to "raise barriers against power in all forms and departments of Government", as Madison stated in 1789. [OSA, p.657]

Historians Try to Sell Brooklyn London Bridge to U.S. Supreme Court - Part 1

Errors, Contradictions, Misquotes, and Omissions in the Professional Historians' McDonald Amicus Brief
[Updated January 20 & 24, 2010]
[This series will address historical problems in the English/Early American historians' McDonald amicus brief filed with the U.S. Supreme Court in support of Chicago's gun control laws. Six of the twenty-one historians involved in this brief were also involved in the historians' 2008 brief supporting Washington DC in the Heller case. For those unfamiliar with this blog, there is a 24 part series starting on January 25, 2009, entitled Root Causes of Never-Ending Second Amendment Dispute (below) addressing and documenting the astonishing number of errors that appeared in that earlier historians' Heller brief. Six of those same historians are back now offering the Court another dose of factually incorrect statements and off-track American history.]

There are major historical problems with the brief supporting Chicago filed by the English/Early American historians in the McDonald Second Amendment incorporation case now before the U.S. Supreme Court. Most of the brief relates to English history and development of the 1689 English Bill of Rights arms provision. The second major part deals with arguments based on Blackstone's Commentaries on the Laws of England, which was published in the late 1760's prior to the American Revolution. Neither of these older historical sources can inform regarding Americans' subsequent establishment of written constitutions with power limiting bills of rights, things unknown in British law and not even mentioned in Blackstone. A following section of the brief attempts to link American revolutionary era statements about self-preservation and defense to Blackstone's description of the English arms provision. The final part of the brief contains numerous errors, contradictions, and omissions of relevant information in its attempts to link the Second Amendment's purpose to the concept protected in the English Bill of Rights and its language to that found in British militia laws. Largely diversionary in nature, the historians focus attention on earlier and largely unrelated historical information while diverting entirely away from American historical development of government limiting bills of rights, which are directly related to the Second Amendment's language and intent.

The arms provision found in the 1689 English Bill of Rights stated:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law. [OSA, p.783]

The 1789 proposed Article IV amendment adopted as the Second Amendment to the U.S. Constitution in 1791:

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

The historians' brief makes this assertion regarding the purpose of these provisions on page 35:

"The only difference between the English "have arms" provision and the Second Amendment is that the Second Amendment right is not dependent on privileges of wealth or birth."

This assertion is not only factually incorrect, it is entirely inane. There are only four words common to both provisions (to, the, and, arms), and only one of them is a noun. The English provision does not mention any right whatsoever, a difference. Also, the Second Amendment right is not dependent on religion, another difference. Americans are not subjects of a monarch, an additional difference. And the very reason why the American right is protected in the Constitution as part of the supreme law of the land is so it is not dependent upon laws allowing for its exercise, a most important difference. A number of other points could be listed here, but let it be remembered that this entire brief diverts away from the relevant American bill of rights related history that the Court should be examining. In the prior Heller case, the Court did not examine this most relevant American history, which is found in a source cited a number of times in Heller briefs, and as a result, the decision did not correct the major historical error in Justice Stevens' dissent, an error provided to the Court by six of the historians involved in this McDonald brief.

The historians' McDonald brief inaccurately refers to the English provision as the "right" to have arms many times, significantly more than use of accurate terms such as "allowance" or "provision." This indicates that these historians do not understand the basic difference between the English and American bills of rights. James Madison indicated that comparisons of the English and American bills of rights (exactly what the historians engage in here regarding one provision) were "inapplicable" because their purposes were so different. This was the main point of Madison's discussion about the English Bill of Rights during his 1789 speech to Congress introducing the Bill of Rights amendments. In explaining why "there is too great a difference in the case to warrant the comparison", Madison stated:

"In the declaration of rights which that country [Great Britain] has established, the truth is they have gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite. . . .But although the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many States have thought it necessary to raise barriers against power in all forms and departments of Government," [OSA, p.656, 657]

Thus, contrary to the historians' McDonald brief assertion that the only difference involved was class or condition, virtually every aspect of the arms statements in the English and U.S. Bills of Rights is different other than the noun "arms" itself. That difference was well understood and emphasized in 1789 by Madison, who not only was the direct author of the Second Amendment's power limiting restrictive clause language, but was involved in preparing and authorizing the very first American state bill of rights, that of Virginia in 1776. Madison's statements regarding these matters are definitive because he was involved in the very genesis of American bills of rights at both the state and federal levels.

Continuing with errors in the historians' McDonald brief, on page 38 they assert the following in reference to the revolutionary period:

"the phrases "bear arms" and "keep arms" are found only in state militia laws of the era."

However, in the previous sentence of the brief they present a period document directly contradicting this claim. There, they quote the Massachusetts Declaration of Rights in a statement about:

"Discussing the 1780 Massachusetts Constitution provision protecting the "right of the people to keep and bear arms for the common defence".

First, note that the historians fail to specify their quote is from the Massachusetts Declaration of Rights. That Declaration of Rights most assuredly protected the people's right to "bear arms", but it was also most assuredly not a state militia law. Three other state bills of rights protected the right to "bear arms" as well (Pennsylvania, North Carolina, and Vermont), but none of those provisions were state militia laws either. Thus, the brief's statement about "bear arms" only being found in state militia laws of the era is another factually incorrect assertion by the historians. A number of state bill of rights provisions contained that language, and the American history entirely ignored by these historians directly links those very arms related provisions to later predecessors of the Second Amendment. In short, this brief omits the most relevant historical information for understanding the Second Amendment's purpose.

Also note that the historians' brief misquotes the Massachusetts Bill of Rights provision, which actually stated:

"XVII. The people have a right to keep and to bear arms for the common defence." [OSA p.773]

The historians garbled together the wording of the Second Amendment and that of the 1780 Massachusetts Bill of Rights provision in their quotation of the latter. But wait, there's more. That is not the only misquote within this sentence. The historians go on after "common defence" discussing use of related language in a state law as follows:

"the Massachusetts legislature stated that the right to "keep and bear arms," was a right necessary for the safety of the state".

Actually, the legislature used only "bear arms" in this preamble to a bill relating to tumults and insurrections. The preamble stated:

"Whereas in a free government, where the people have a right to bear arms for the common defence, and the military power is held in subordination to the civil authority, it is necessary for the safety of the State that the virtuous citizens thereof should hold themselves in readiness, and when called upon, should exert their efforts to support the civil government, and oppose the attempts of the factious and wicked men who may wish to subvert the laws and Constitution of their country". [Source: go to page 366]

Not only do the historians replace "bear arms" with "keep and bear arms" in this misquote, they also attribute the safety of the state directly to the right to bear arms for the common defense, when in fact, the document they quote attributes it to the citizens who should exert their efforts to support the civil government when called upon.

Thus, just on page 38 of the English/Early American historians' McDonald amicus brief alone there are at least two misquotes of period sources, one misattribution, and two factually incorrect statements, with the last of the latter providing direct evidence of significant omission of relevant period sources. The "bear arms" language that the historians assert was only found in period militia laws was in fact found in a state bill of rights arms provision they quote, and it is also found in a number of other period American bill of rights arms related provisions. The historians are clearly ignoring state bill of rights provisions that are much more relevant for understanding the Second Amendment's purpose while instead advancing pre-revolutionary English sources that are largely irrelevant. The alternative to their ignoring this relevant information is they haven't got a clue to begin with, an unlikely prospect. These facts, errors, and omissions indicate that the historians are not reliable sources of information for the Court's fresh examination of the "origins of the Second Amendment" that the brief advises "to properly decide the question presented" in McDonald. [p.6]

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

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

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

"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." [OSA, pp.654-655]

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

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

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

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

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

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

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

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

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

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

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

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

Root Causes of Never-ending Second Amendment Dispute - Part 23

Diversionary Arguments Abound in the Historians' Heller Amicus Brief

Completely ignoring the restrictive clause of the Second Amendment protecting "the right of the people to keep and bear arms" against infringement, the historians had this to say about Madison's version taken to Congress:

Assertion #13
"Taking the Virginia and New York recommendations as his model, Madison again made the militia the urgent question to confront." [p.25]

Fact Checking of Assertion #13
On the contrary, there was no reason for Madison to deal with militia powers that were already established in the Constitution exactly as the Federalists wanted them. As examined in the previous two posts, what Madison had every reason to do was satisfy the overwhelming Antifederalist demands for adding a bill of rights to the Constitution, the protections of which they took from those already found in the existing state bills of rights. The ratifying convention related proposals for a bill of rights invariably included protection for the right to keep arms. [OSA, pp.151, 260, 446, 459, 481, 505, 735] In the model Bill of Rights developed by George Mason, author of the 1776 Virginia Declaration of Rights, he combined his own original well regulated militia clause with protection for the right to keep and bear arms. [OSA, p.459] Both Mason and Madison understood the predecessor state bill of rights provisions as limits on the state legislatures, and that these same limits were now being placed in a federal bill of rights to protect the same rights against federal abuse of power.

What both the Second Amendment and James Madison's version were intended to do was to assure that "the right of the people to keep and bear arms shall not be infringed." This Madison restrictive language is exactly the same in both provisions. [OSA, pp.654, 716] It is also the language that the historians have consistently bent over backwards to ignore and divert attention away from whenever feasible throughout their brief. Readers are assured that the militia is what "Madison again made" the "urgent question to confront" while the right of the people to keep and bear arms is completely ignored once again in the brief. Where are the period historical sources indicating that Madison considered making the militia powers an urgent question for Congress to confront in relation to his Bill of Rights proposals? There is a reason such sources have not been cited in the brief, because they do not exist. If, as the historians assert, the question Madison was pushing as an amendment to Congress was the militia and it was "urgent", why didn't Madison even mention it in his speech to that body?

The historians presented a page-long straw man argument about what the various points in Madison's notes for his amendments speech to Congress meant. Attempting to divert all attention to the militia clause, they then emphasized that Madison "did not discuss the right to bear arms" in his speech. True, but he also did not discuss freedom of speech, freedom of assembly, the right to petition, the right to counsel, protection against cruel and unusual punishments, and a very great number of other specific rights eventually protected in the U.S. Bill of Rights. Most of the rights he did "discuss," as the historians describe it, were simply mentioned, not discussed. Readers are informed that Madison wanted provisions for freedom of religion, the press, and criminal jury trials as protections against the states, also mentioned in his speech. But where is the "urgent" militia question mentioned in his speech or his notes? Apparently it is not as urgent as the historians purpose of diverting attention away from the right to keep and bear arms clause language.

All of these Madison notes and Congressional speech arguments are used by the historians to divert attention away from much more relevant and important information. In addition to guiding readers away from consideration of the restrictive right to keep and bear arms clause, these arguments divert attention away from the fact Madison stated that the American state bills of rights were intended to limit legislative power. This is a view that directly contradicts the historians' claim upon which this entire brief is founded. Madison stated in his speech to Congress that American bills of rights were intended "to raise barriers to power in all forms and departments of Government." This concept was repeated more than once and was a major point of Madison's Congressional speech introducing his Bill of Rights amendments. The historians are forced to ignore Madison's stated views in order to pursue their confused arguments that are founded on an accumulation of errors about Second Amendment intent. [See parts 1, 2, and 3 of this series for the historians' earliest erroneous statements regarding the intent of the state bills of rights, which contain the Second Amendment's predecessor language.]

Conclusion - Assertion #13 is Erroneous
The historians' assertion that the militia was what Madison considered as an "urgent question to confront" is without historical foundation and is used for entirely diversionary purposes in their brief. Madison never mentioned this "urgent" need for Congress to confront militia powers, and the period evidence clearly indicates, as shown in the previous post, that his concern was private rights in the case of all of the predecessors of the first eight amendments.

Root Causes of Never-ending Second Amendment Dispute - Part 22

More Error Based Confusion in the Historians Heller Amicus Brief

The historians claim that:

Assertion #12
"In drafting the amendments that evolved into the Bill of Rights, James Madison had no reason to place a private right to firearms on his agenda." [p.25]

Fact Checking of Assertion #12
The historians' claim that Madison was not intent on a Second Amendment predecessor relating to "a private right to firearms" completely ignores relevant period sources on Bill of Rights development. The Antifederalists who prepared Second Amendment predecessor language for a new federal bill of rights understood that it would protect the specified rights against the new government in exactly the same way that the state bill of rights predecessors it was based upon protected the same rights against abuse by the state governments, and Madison also understood the proposals this way (as examined in a number of prior parts of this series).

In effect, the historians are arguing that Madison did not have a clue about what he was doing with his own Second Amendment predecessor, although they do not openly state this. Instead, they do the equivalent by completely ignoring every piece of historical evidence about his efforts to organize, group related proposals, and insert these groups of related amendments into the Constitution. They also ignore the period comments by contemporaries indicating how they understood Madison's proposal. He did not intend to add a list of amendments at the end of the Constitution as ultimately occurred. Instead, Madison intended to insert amendments directly into the document at locations where related material was already located. Which provisions did Madison group the Second Amendment with and where did he plan to put it in the Constitution? Was it grouped and placed along with the Tenth Amendment that the historians have directly related its intent to? No. Was it to be placed among the militia powers that the historians have insisted all along it was related to? No.

Madison grouped the Second Amendment predecessor among a large collection of private rights protections. He wanted all of these inserted into the Constitution directly after clauses 2 and 3 of Article I, Section 9. These are the only provisions in the U.S. Constitution that protect specific private rights against violation by the new federal government. Exactly which rights did he group his Second Amendment related language with? - First, Third, Fourth, Fifth, Sixth, and Eight Amendment predecessors, private rights protecting provisions all. [OSA, pp.654-656]

Based on Madison's own actions, it is clear that the historians' assertion is completely off base. Further evidence of Madison's private rights understanding is found in the fact that contemporaries who commented on this proposal understood it just as he did - as protection for private arms rights.

Fisher Ames, a Massachusetts member of the House wrote this about Madison's proposals:

"The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people. Freedom of the press, too." [OSA, p.668]

Tench Coxe's article explaining the purpose for every one of Madison's proposals treated the Second Amendment predecessor as assuring that "the people are confirmed by the next article in their right to keep and bear their private arms." For what purposes? To prevent tyranny by the government itself or by government raised military forces. [OSA, p.671]

Conclusion - Assertion #12 is Erroneous
The period evidence directly contradicts the historians on this matter. Madison had every reason to pursue a Bill of Rights provision protecting the private right to keep and bear of arms. Madison's actions regarding the Second Amendment are no different than those relating to the other private rights protections in the first eight amendments.

Readers of the professional historians' Heller amicus brief have two choices. They can choose to ignore the period evidence indicating the Second Amendment was intended to protect private rights, just as the historians have done. The alternative is to give the Founders a little credit for understanding exactly what they were doing and saying exactly what they meant by recognizing that the historians have founded their brief on an accumulation of errors that undermine every claim they make about the intent of the Second Amendment and its predecessors.