Who Wrote The Original Version Of The Second Amendment?

The Second Amendment Has Deep Virginia Roots

The First Congress passed the U.S. Bill of Rights amendments on to the states for ratification in 1789 because a number of state ratifying conventions desired private rights protecting restrictions on the new Federal Government. By identifying who wrote the very first Second Amendment predecessor (one combining both right to arms and well regulated militia clauses), and who improved that language later in Congress, many facts illustrating the development and intent of this most disputed constitutional provision become clear.

Three native sons of Virginia were the men most responsible for developing and/or promoting not only the Second Amendment's language, but also the other provisions of the U.S. Bill of Rights - George Mason, Patrick Henry, and James Madison. The younger of these, Madison, was most prominently involved in passage of the Bill of Rights amendments by the First Congress. All three men were delegates the previous year to the 1788 Virginia State Ratifying Convention, which produced the model for the U.S. Bill of Rights. All three were also appointed as Virginia delegates to the Philadelphia Federal Convention of 1787 that produced the proposed U.S. Constitution, but Henry never attended. In addition, these three men were members of Virginia's Revolutionary Era Convention and on the committee which produced and adopted America's first state declaration of rights and form of government over a decade earlier, prior to the Declaration of Independence. And almost two years prior to that, George Mason and Patrick Henry were intimately involved in activities relating to private arms and defense well prior to any hostilities of the American Revolution. They later protected these activities against violation by the government in Virginia's 1776 Declaration of Rights Article 13, the first of many American Mason Triads. Its leading well regulated militia declaration was the earliest such bill of rights related usage linking an armed civil population to ultimate control over government raised armed force.

James Madison's contribution was presenting the House of Representatives an improved version of Virginia's model for the U.S. Bill of Rights and pushing for its adoption. His specific original contribution was addition of restrictive language to all rights protections, including 'infringe' based restrictions on First and Second Amendment protected rights. Madison also grouped private rights protections together including both Second Amendment clauses. However, he was not the originating author of Virginia's Bill of Rights model and its Second Amendment predecessor.

The original author of The Second Amendment's two-clause version, as well as the other Bill of Rights protections, was George Mason, Antifederalist chairman of an amendments committee in Virginia's ratifying convention. Mason was assisted in convention by Patrick Henry, whose renowned rhetorical skills helped convince the assembled delegates that a U.S. Bill of Rights based directly upon Virginia's 1776 State Declaration of Rights was essential. Mason's model Bill of Rights, with its novel two-clause Second Amendment predecessor greatly influenced all following state ratifying conventions.

New York's ratifying convention altered Mason's Second Amendment predecessor a month later to make it more clear in the New York Ratification Declaration of Rights, and the following month the North Carolina Convention adopted Virginia's language verbatim along with all of Virginia's other proposals and refused to ratify until a Bill of Rights was added to the Constitution. It was these last three state ratifying conventions of 1788 that Congress understood as desiring the Virginia model Bill of Rights amendments and its Second Amendment predecessor.

A year prior to these ratifying conventions, Mason and Madison had been very active members of the Philadelphia Federal Convention. Virginia's delegates offered the assembled state delegations the 1787 Virginia Plan for their consideration, and the U.S. Constitution resulted from pursuance of that Plan. A major Ratification Era controversy over the need for a Federal Bill of Rights erupted near the end of the Convention. Mason pointed out that a Bill of Rights was desirable and could be drawn up in "a few hours" by relying on the state declarations of rights. Yet the Convention delegations, in a rush to leave town, unanimously voted down a committee to draw up a Bill of Rights as part of the Constitution. At this time, Madison considered Mason's concern for a Bill of Rights as a relatively unimportant little circumstance, but Americans ultimately agreed with Mason.

George Mason refused to sign the proposed Constitution and left the Federal Convention extremely upset. Before leaving Philadelphia, Mason discussed the need for a Federal Bill of Rights with all three men who later became Antifederalist leaders of the Pennsylvania Ratifying Convention Minority - John Smilie, Robert Whitehill, and William Findlay. As a result, the three Pennsylvanians did in in their own ratifying convention exactly what Mason did later in Virginia's - prepared and proposed a bill of rights based on their own state declaration of rights, but it was defeated on a procedural vote. Undoubtedly, the reason Mason used both a Pennsylvania style right to arms clause and his own well regulated militia language as the original Second Amendment predecessor was his contact with the Pennsylvania Bill of Rights supporting leaders. Mason continued on after leaving Philadelphia engaged in a one man information campaign for a Federal Bill of Rights and against ratification of the proposed U.S. Constitution as written.

George Mason was also the primary author of the Virginia Declaration of Rights and Form of Government in June of 1776, early in the American Revolution. This was eleven years prior to his writing the Virginia model for a Federal Bill of Rights. But Mason was not alone in this early Revolutionary Era constitutional endeavor. Both Patrick Henry and James Madison were also members of the 1776 Virginia Convention that formed America's first state constitution, and both were on the committee with Mason that developed and approved the language. Mason's original well regulated militia clause from Virginia's 1776 Declaration of Rights was copied verbatim by Mason into Virginia's 1788 model for the U.S. Bill of Rights, and its full Mason Triad context was included.

Other states followed Virginia's 1776 lead on their Revolutionary Era declarations of rights. All seven subsequent states to adopt early American declarations of rights relied upon Mason's Virginia original version as a guide. This was especially apparent in their Second Amendment related Mason Triads, which protected an armed civil population, noted danger to liberty from a standing army, and declared government raised force subordinate to the civil power.

The older two Virginians, George Mason and Patrick Henry, were also both directly involved in defensive activities of the early Revolutionary Era clearly related to the Second Amendment and its predecessor Virginia Declaration of Rights Article 13 Mason Triad protection. Almost two years before its adoption in June,1776, both men met with George Washington and other Virginia patriots at Mount Vernon in August of 1774 to discuss claims of unlimited authority by government officials and the threat of military force to compel compliance. This was well over a half year before any hostilities began. The result of that meeting was formation of all-voluntary armed defensive associations in each of the delegates' home counties. Mason helped form and lead the Fairfax Independent Company, and Henry organized and led the Hanover Volunteers. By early 1775, still before hostilities, Mason started referring to his county's voluntary defensive association as a well regulated militia. According to George Washington, many counties in Virginia had such voluntary independent companies of militia by that time.

Voluntary defensive associations were only possible because Americans, largely farmers and frontiersmen, possessed their own arms and ammunition, knew how to use them, and could join together in mutual defense, just as they were capable of individual self defense. Americans individually decided they needed to protect themselves, their rights, their communities and their existing form of government against government officials who claimed unlimited authority, violated their rights, and destroyed their established civil government utilizing armed force.

There are extensive details regarding each of the above periods of time and the commentary of Mason, Henry, Madison, and many others relating to their activities and Second Amendment developmental history. As can be seen in the above narrative, the U.S. Constitution, and even more so the U.S. Bill of Rights, are Virginia inspired documents. George Mason was THE giant of American Constitutionalism, James Madison was also such a giant, and Patrick Henry rhetorically backed up their endeavors with clear and convincing reasoning. The Second Amendment most clearly has deep, deep Virginia roots.

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.]

Second Amendment History Online - Zachariah Johnson's Federalist Arms Mantra

The People are Not to be Disarmed of Their Weapons

[Zachariah Johnson was a Federalist member of the 1788 Virginia Ratifying Convention, which adopted a proposed bill of rights and list of other amendments to the Constitution after its ratification. Antifederalists, led by George Mason, had actually prepared the bill of rights and list of other amendments. Virginia Federalists managed to achieve ratification of the Constitution by agreeing to send all of the proposals on to the new Federal Congress for consideration and promising to support the bill of rights protections. Johnson's Federalist Arms Mantra was part of a speech to convention delegates on June 25, 1788. On the previous day, Patrick Henry had introduced what became the model for the U.S. Bill of Rights that contained the original two-clause Second Amendment predecessor.

    In this particular instance, the armed populace argument was deployed by Johnson to counteract fears that the Federal Government would have power to make a religious establishment. Note also, as in all period arms mantras, the people's weapons that Johnson referred to included the common single shot flintlock arms and bayonets of the period, exactly what soldiers employed by the government would be armed with.]

"The diversity of opinions and variety of sects in the United States have justly been reckoned a great security with respect to religious liberty. The difficulty of establishing a uniformity of religion in this country is immense. The extent of the country is very great. The multiplicity of sects is very great likewise. The people are not to be disarmed of their weapons. They are left in full possession of them. The government is administered by the representatives of the people voluntarily and freely chosen.

    Under these circumstances, should any one attempt to establish their own system, in prejudice of the rest, they would be universally detested and opposed, and easily frustrated. This is a principle which secures religious liberty most firmly. The government will depend on the assistance of the people in the day of distress. This is the case in all governments. It never was otherwise." [The Origin of the Second Amendment, p. 452]

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.