Historians Try to Sell Brooklyn London Benjamin Franklin Bridge to U.S. Supreme Court - Part 4

Conflation , Contradiction and Error in the Pennsylvania History McDonald Amicus from Professional Historians
[Updated February 20 & 26, 2010]
To the historians, the extensive ratification era arguments about militia powers and the need to amend them are viewed as proof that the Second Amendment resulted from those very arguments because the term "militia" appears in it. The following statement from the historians' brief indicates this general view:

"The Second Amendment came out of a debate about the purpose and control of militias." [p.23]

The above statement is false, as demonstrated in the following analysis, because the Second Amendment actually came out of the ratification era demands for a federal bill of rights consisting of existing state bill of rights protections. The following series of statements from the historians contain embedded quotes of two major Founders, George Mason and Patrick Henry, spoken in the 1788 Virginia Ratifying Convention. The historians thoroughly conflate Antifederalist desire for a militia powers amendment with the separate and distinct desire for Second Amendment related bill of rights protection in their use of these Founders' quotes.

""Mason warned of central governments’ penchant for disarming the people:

"An instance within the memory of some of this house will show us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British government was advised by an artful man [Sir George Keith], who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia."

The solution Mason saw was that “divine Providence has given every individual – the means of self-defense” by joining a militia to combat a standing army. Id. 380–81. Patrick Henry argued that “You have a bill of rights [in Virginia] to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power!” Id. 146. He sought to replicate at the federal level the state constitutional provisions allowing the people to protect themselves against government. The right of revolution was still foremost in his mind." [pp.25-26]
[The Id. 146 reference above from the brief is in error. It should read 446. DY]
The historical problem in the above amalgam of quotes is conflation of Mason militia powers debate quotes that are not directly Second Amendment related to a Henry bill of rights quote from two days later during bill of rights debate that is directly related to the Second Amendment. Mason's quotes are from June 14 debate on the Article 1, Section 8 militia powers. Mason stated the solution for his concerns by specifying the amendment he wanted. The "solution" that the historians read into Mason's second remark is diversionary and misleading, thus, it is discussed in a later post. Found within the same paragraph along with Mason's first quote is the solution to the problem he is describing, which the historians completely ignore:

"I wish that, in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them. With this single exception, I would agree to this part, as I am conscious the government ought to have the power." [The Origin of the Second Amendment, p.402]

Mason, chairman of the Antifederalist amendments committee, was the author of the Virginia Ratifying Convention's proposed Bill of Rights as well as a list of 20 "other" non-bill of rights amendment proposals. [OSA, pp.457-462] Compare Mason's stated amendment solution above to Virginia's proposed "other" amendment #11, which is also ignored by the historians:

"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 ro provide for the same." [OSA, p.460]

This is the proposed amendment that directly results from the militia powers debate Mason's quote is extracted from. His stated amendment solution in the same paragraph as his quote is presented in virtually the same words as proposed amendment #11, which he wrote. Also, Mason clearly indicated this was the only amendment Antifederalists sought regarding the Article 1, Section 8 militia powers. Thus, the Second Amendment was not the solution Mason was seeking, nor could it possibly have been the result of that or any other day's militia powers arguments from the Virginia Ratifying Convention. The historians view that the Second Amendment "came out of a debate about the purpose and control of militias" is false because the period sources they ignore conclusively prove that the Second Amendment was not the solution sought by Mason, and that the actual solution, proposed amendment #11, was the only one sought by the Virginia Antifederalists relating to the Constitution's militia powers. The period evidence conclusively indicates that the Mason quote provided by the historians is not directly related to the Second Amendment.

Patrick Henry's quote from two days later, on the other hand, is directly related to the future Second Amendment. It not only directly dealt with the bill of rights issue, but Second Amendment predecessor language from the state bill of rights was also specifically introduced in the Virginia Convention in relation to it. Shortly before making the statement quoted by the historians, Henry initiated discussion about the need for a federal bill of rights on June 16 by having the 8th through 13th articles of Virginia's declaration of rights read. [OSA, p.434] These particular protections against state violation of the people's rights were later incorporated as the first eight amendments of the U.S. Bill of Rights (excepting the 3rd). [OSA, pp.743-746] This is the 13th article from Virginia's 1776 bill of rights:

"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; that standing armies, in time of peace, should be avoided, as dangerous to liberty: and that, in all cases, the military should be under strict subordination to, and governed by, the civil power." [OSA, p.434]

Virginia' 1776 provision is the original state bill of rights progenitor of the Second Amendment's first clause. It was adopted verbatim, with added bill of rights protection from other states, by the 1788 Virginia Ratifying Convention as part of its proposed bill of rights. Here is Virginia's proposed Bill of Rights Article 17:

"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 1788 Virginia proposal is the original two-clause ratification era progenitor of the Second Amendment. James Madison not only voted for the above Virginia Ratifying Convention proposal, he promised to actually support the Second Amendment related parts of it along with all of the other individual rights protections in the proposed bill of rights from Virginia, and he directly relied upon it in drawing up his version of what became the Second Amendment. Madison's 1789 version of the above as presented to Congress stated:

"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". [OSA, pp.654-655]

For comparison, this is the Second Amendment as passed by Congress and ratified by the states:

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

To the historians, the Second Amendment was all about the militia, not about individual rights to possess arms, and it resulted from ratification era militia powers arguments. Period sources prove their use of militia powers arguments as relating to the Second Amendment are erroneous because they conflate largely unrelated arguments as well as an entirely unrelated amendment with the Second Amendment. That the Second Amendment is a bill of rights provision taken directly from state bills of rights provisions is what the period sources clearly show. These facts cannot be determined from the confusing information presented by the historians in their brief. They can only be determined by examining essential information the historians have ignored, such as Mason's militia powers amendment solution to the problem he was describing, and the resulting militia powers amendment he produced to solve that problem.

The historians constantly pursue a militia powers nexus throughout their brief while always downplaying the much more relevant bill of rights related history of the Second Amendment. Their attempted link of the two different subjects in the above amalgam of Mason and Henry quotes results in error due to conflation of unrelated militia powers and bill of rights arguments and solutions.

Because of such errors, the professional historians' amicus brief supporting Chicago's gun control laws in the McDonald case cannot be relied upon for factual information about the Second Amendment's history or intent.

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

Contradictions and Errors in the Pennsylvania History McDonald Amicus from Professional Historians

[This Benjamin Franklin Bridge series of posts will address numerous historical errors in the Pennsylvania and Early American history amicus brief filed with the U.S. Supreme Court by professional historians supporting the Windy City in the McDonald vs Chicago Second Amendment incorporation case. One of the four professional historians involved, Professor Finkelman, was also involved in two other McDonald historical briefs, one analyzed in the London Bridge series of posts, as well as being involved in the historians' 2008 brief supporting Washington DC in the Heller case. For those unfamiliar with this blog, the London Bridge series of posts consists of 6 parts starting January 16, 2010, and the Heller related series consists of 24 parts starting January 25, 2009, entitled Root Causes of Never-Ending Second Amendment Dispute. Both series address and document astonishing numbers of historical errors appearing in the Second Amendment related briefs from professional historians. In this Pennsylvania related brief, Professor Finkelman has teamed up with Nathan Kozuskanich, author of a paper on Pennsylvania history and the meaning of "bear arms" that was cited in the historians' Heller brief.]

The historians' argument begins with a look at the ideas of English Whig writers, particularly John Locke, and of several Americans regarding self-defense and defense of the polity, which the historians prefer to call "collective" self-defense. Their brief then deals with Pennsylvania colonial history as influenced by the Quakers who founded and controlled the colony for a large part of its history. They argue that Quakers had a significant impact on development of some provisions in the 1776 state constitution. However, they grossly exaggerate the extent of that influence, misinterpret the language and intent of the arms related provisions within it, and completely ignore the provisions of the state constitution authorizing and limiting the new government being established under it. Regarding the ratification period, when the U.S. Constitution was debated and a federal bill of rights was demanded, they make arguments based upon the proposals of the Pennsylvania Minority, including their arms related provision, which the historians deny has any relationship to the Second Amendment. The purpose of the brief is largely to explain away the "people have a right to bear arms for the defence of themselves and the state" language of the Pennsylvania Declaration of Rights as not protecting an individual right (except as allowed by the government). This and subsequently developed Pennsylvania language about "bear arms" is consistently separated from any connection to the Second Amendment in spite of extensive contrary period source evidence. The analysis of errors in this series will generally begin with the later ratification period and trace arguments back in time to the earlier revolutionary and colonial periods.

To properly understand the historians' view, their general statement about the Second Amendment's meaning follows:

"In the Second Amendment, the Founders codified the right of the people to bear arms collectively, with the understanding that some individuals could possess those arms, but the militia, and thus the individuals, would be in the service of the government, which would ensure that the militia was “well regulated.” [p.35]

Restating for clarity, some individuals who are members of a government regulated militia in government service would have the "right" to possess and bear arms if allowed or ordered to do so by the government. The extent of the conflict between the historians understanding of this "right" protected by the Bill of Rights and that of the Founders who developed and adopted it will become evident as the views of the former are documented to be in direct conflict with the statements and views of the latter.

Early in their McDonald amicus brief, the historians make the following assertion in relation to their request that the Supreme Court "reconsider its historical interpretation" in Heller:

"The Founders used “bear arms” to have specific meaning limited to the context of military service." [p.12, footnote 3]

This statement is false. The 1787 Second Amendment related provision from the Pennsylvania Minority's bill of rights proposal offered in that state's ratifying convention and later printed in their "Reasons of Dissent" directly contradicts it.

"That the people have a right to bear arms for the defence 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". [The Origin of the Second Amendment, p.151, underline added]

Clearly, "bear arms" is specifically used to refer to other than "military service" purposes in this proposal, a fact directly contradicting the historians erroneous claim. The Pennsylvania Minority's proposed bill of rights arms proposal not only protected each individual's right to bear arms for specified private purposes, such as defense and killing game, and for organized defense when necessary at the discretion of the individual, it also protected each individual's right to keep arms by preventing laws disarming the people. Note that this Second Amendment related provision was part of the first proposal for a federal bill of rights made in a state ratifying convention, and that Federalists voted down all of the Minority's bill of rights provisions, which are discussed in the next post of this series in more detail.

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.]