Contradictions and Errors in the Pennsylvania History McDonald Amicus from Professional Historians
Dealing directly with the Pennsylvania Minority's bill of rights proposals, the historians make this observation:
"This suggests that Madison and Congress knew about the "Reasons of Dissent," read them, and treated them like a menu, selecting some options and rejecting others, including the individual-oriented gun-right provisions. . . .
The proposals of the Pennsylvania dissenters that were incorporated, sometimes almost word-for-word, into the [U.S.] Bill of Rights include the rights in the Free Exercise, Free Press, and Free Speech Clauses of the First Amendment, and those in the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments. . . . But Congress decided not to recognize the individual-oriented gun rights in the Dissent, including the right not to be disarmed except in exceptional circumstances and the right to hunt." [pp.28, 29]
However, contradicting their claim that Congress rejected the Minority's desired protection relating to the right to bear arms, the Second Amendment clearly contains Pennsylvania style language in its second clause, which James Madison altered from a Pennsylvania style declaration into a restrictive form:
"The right of the people to keep and bear arms shall not be infringed". [OSA, p.654, underline added]
Additionally, the Pennsylvania Minority's provision protected the people's right to "keep" arms by preventing passage of laws for "disarming the people or any of them". Exactly the same purpose was achieved in the Second Amendment by simply adding "keep" to the existing people have a right to bear arms language. It should be clear to any unbiased reader that the historians are in complete denial of period sources they are fully aware of.
For the sake of historical clarity, the Pennsylvania style language found in the U.S. Bill of Rights resulted from the fact that George Mason wrote the model for the U.S. Bill of Rights in the Virginia Ratifying Convention using the Virginia Declaration of Rights as the foundation with added provisions from other states, including Pennsylvania. While there is no doubt that the members of Congress were familiar with the proposals of the Pennsylvania Minority, they did not need to use the Minority's proposals directly as a menu, because their provisions were incorporated in Mason's proposal. All of the first eight amendments are directly based upon Mason's model Bill of Rights, [OSA, pp.388-390] which included the "bear arms" style language of the Pennsylvania Minority that originated in the 1776 Pennsylvania Declaration of Rights. [OSA, p.754]
There is another historical fact also contradicting the historians. A total of fifteen amendments were proposed by the Pennsylvania Minority. [OSA, pp.150-152] Only the first seven were based on quotes of Pennsylvania Declaration of Rights provisions, the seventh one being "the people have a right to bear arms" protection. The Speaker of the House of Representatives, which passed the Bill of Rights amendments, was Frederick Augustus Muhlenberg from Pennsylvania. He stated in an August 18, 1789 letter that the congressional proposal of amendments, mostly bill of rights provisions, about to be passed from the House to the Senate "takes in the principal Amendments which our Minority had so much at Heart". [FVRBA, p.195, OSA. p.799] The principal amendments were bill of rights proposals. That was the reason why the first amendments to the U.S. Constitution were Bill of Rights provisions, the first eight of which were all developed directly from state bills of rights protections. Pennsylvania was the state where "the people have a right to bear arms" language first appeared. That language is the foundation for the Second Amendment's second, restrictive clause.
That the historians are attempting to deny, separate, and explain away Pennsylvania "people have a right to bear arms" language as entirely unrelated to the Second Amendment is evident. Their attempts to do so lead to many more errors of fact than those documented above, as will be noted in future posts of this series.
Showing posts with label Pennsylvania minority. Show all posts
Showing posts with label Pennsylvania minority. Show all posts
Monday, February 8, 2010
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.
[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.
Monday, April 6, 2009
Root Causes of Never-ending Second Amendment Dispute - Part 15
Historians Consistently Ignore Second Amendment's Bill of Rights History
The professional historians' made this claim in their Heller amicus brief:
"Had Anti-federalists continued to want to push for the constitutional protection of firearms, ample time remained to muster support in the nine states yet to act on the Constitution. . . . If the Pennsylvania dissenters tried to place the question of a private right to arms before the body politic, their fellow Americans declined their summons." [p.24]
There is no doubt that the Antifederalist Pennsylvania minority placed their "bill of rights" including a private right to arms before the American body politic because their Dissent was one of the most widely reprinted of all ratification era political texts. They were trying to protect rights already found in their own state's declaration of rights. Directly contrary to the historians' claim, Americans did respond to the minority's demands for a bill of rights containing private right to arms protection. This occurred through the votes of delegates in six subsequent state ratifying conventions, five of which adopted such bills of rights.
The first convention to follow Pennsylvania's with a bill of rights vote was Massachusetts, where Samuel Adams attempted to add protection for freedom of the press, religion, petition, the right of peaceable citizens to keep arms, against unnecessary standing armies, and prohibiting unreasonable searches, all protections found in his own state's declaration of rights. Adams' bill of rights motion was defeated by the Federalists.
Federalist Jeremy Belknap was present during the Massachusetts Ratifying Convention debates. His period commentary regarding Adams' bill of rights protections follows:
"It was matter of speculation how Mr. Adams came to propose such amendments. . . . In a week or two afterward came along a protest of the Pennsylvania minority, in which these very things are objected to the Constitution which he [Adams] proposed to guard against by his motion. It is said the copies of these protests were purposely detained on the road; but it is supposed Adams had a copy in a letter before the Convention was dissolved." [The Origin of the Second Amendment, p.263 n4, emphasis in original]
Belknap was not the only period actor to link the Pennsylvania Minority's arms protecting bill of rights to later bill of rights proposals. Frederick Muhlenberg, speaker of the House of Representatives, linked the bill of rights proposals of the Pennsylvania minority's 1787 Dissent to the future U.S. Bill of Rights provisions under consideration in Congress in 1789 as follows:
"tomorrow we shall take up the Report & probably agree to the Amendments proposed, & which are nearly the same as the special Com[m]itte[e] of eleven had reported them. . . .it takes in the principal Amendments which our [Pennsylvania] Minority had so much at Heart. . ." [The Origin of the Second Amendment, p.799]
It turns out that Samuel Adams' bill of rights arms proposal, which the historians themselves recognized as relating to the "private ownership of firearms" (see Part 14), was also understood by the Boston Independent Chronicle and the Philadelphia Independent Gazetteer as specifically included within the House Bill of Rights predecessors that Speaker Muhlenberg wrote about above. This means constitutional protection for the "private ownership of firearms" was widely understood as included in the Second Amendment's House predecessor. Here is the excerpt from these newspapers:
"It may well be remembered that the following "amendments" to the new constitution for these United States, were introduced to the convention of this commonwealth [Massachusetts] by . . . Samuel Adams. . . .every one of the intended alterations, but one, have been already reported by the committee of the house of Representatives in Congress, and most probably will be adopted by the federal legislature."
This is Sam Adams' amendment relating to the private ownership of firearms:
"And that the said Constitution be never construed to authorize Congress. . . to prevent the people of the United States who are peaceable citizens, from keeping their own arms;" [The Origin of the Second Amendment, pp.701-702]
All of Samuel Adams intended alterations but one about standing armies were actually added to the U.S. Constitution by amendment. Those added were protection for freedom of the press, religion, petition, the right of the people to keep arms, and protection against unreasonable searches. These are all protections for private rights.
Even though the historians recognized both the Pennsylvania minority and Samuel Adams arms protections as relating to "private ownership of firearms," they refused to recognize their bill of rights context and the fact that these protections were already found in their respective state's declaration of rights. Ignorance of the fact that the Heller amicus brief argument from fifteen academic historians is internally inconsistent historically and directly controverted by the most relevant period sources is a root cause of never-ending Second Amendment dispute.
The professional historians' made this claim in their Heller amicus brief:
"Had Anti-federalists continued to want to push for the constitutional protection of firearms, ample time remained to muster support in the nine states yet to act on the Constitution. . . . If the Pennsylvania dissenters tried to place the question of a private right to arms before the body politic, their fellow Americans declined their summons." [p.24]
There is no doubt that the Antifederalist Pennsylvania minority placed their "bill of rights" including a private right to arms before the American body politic because their Dissent was one of the most widely reprinted of all ratification era political texts. They were trying to protect rights already found in their own state's declaration of rights. Directly contrary to the historians' claim, Americans did respond to the minority's demands for a bill of rights containing private right to arms protection. This occurred through the votes of delegates in six subsequent state ratifying conventions, five of which adopted such bills of rights.
The first convention to follow Pennsylvania's with a bill of rights vote was Massachusetts, where Samuel Adams attempted to add protection for freedom of the press, religion, petition, the right of peaceable citizens to keep arms, against unnecessary standing armies, and prohibiting unreasonable searches, all protections found in his own state's declaration of rights. Adams' bill of rights motion was defeated by the Federalists.
Federalist Jeremy Belknap was present during the Massachusetts Ratifying Convention debates. His period commentary regarding Adams' bill of rights protections follows:
"It was matter of speculation how Mr. Adams came to propose such amendments. . . . In a week or two afterward came along a protest of the Pennsylvania minority, in which these very things are objected to the Constitution which he [Adams] proposed to guard against by his motion. It is said the copies of these protests were purposely detained on the road; but it is supposed Adams had a copy in a letter before the Convention was dissolved." [The Origin of the Second Amendment, p.263 n4, emphasis in original]
Belknap was not the only period actor to link the Pennsylvania Minority's arms protecting bill of rights to later bill of rights proposals. Frederick Muhlenberg, speaker of the House of Representatives, linked the bill of rights proposals of the Pennsylvania minority's 1787 Dissent to the future U.S. Bill of Rights provisions under consideration in Congress in 1789 as follows:
"tomorrow we shall take up the Report & probably agree to the Amendments proposed, & which are nearly the same as the special Com[m]itte[e] of eleven had reported them. . . .it takes in the principal Amendments which our [Pennsylvania] Minority had so much at Heart. . ." [The Origin of the Second Amendment, p.799]
It turns out that Samuel Adams' bill of rights arms proposal, which the historians themselves recognized as relating to the "private ownership of firearms" (see Part 14), was also understood by the Boston Independent Chronicle and the Philadelphia Independent Gazetteer as specifically included within the House Bill of Rights predecessors that Speaker Muhlenberg wrote about above. This means constitutional protection for the "private ownership of firearms" was widely understood as included in the Second Amendment's House predecessor. Here is the excerpt from these newspapers:
"It may well be remembered that the following "amendments" to the new constitution for these United States, were introduced to the convention of this commonwealth [Massachusetts] by . . . Samuel Adams. . . .every one of the intended alterations, but one, have been already reported by the committee of the house of Representatives in Congress, and most probably will be adopted by the federal legislature."
This is Sam Adams' amendment relating to the private ownership of firearms:
"And that the said Constitution be never construed to authorize Congress. . . to prevent the people of the United States who are peaceable citizens, from keeping their own arms;" [The Origin of the Second Amendment, pp.701-702]
All of Samuel Adams intended alterations but one about standing armies were actually added to the U.S. Constitution by amendment. Those added were protection for freedom of the press, religion, petition, the right of the people to keep arms, and protection against unreasonable searches. These are all protections for private rights.
Even though the historians recognized both the Pennsylvania minority and Samuel Adams arms protections as relating to "private ownership of firearms," they refused to recognize their bill of rights context and the fact that these protections were already found in their respective state's declaration of rights. Ignorance of the fact that the Heller amicus brief argument from fifteen academic historians is internally inconsistent historically and directly controverted by the most relevant period sources is a root cause of never-ending Second Amendment dispute.
Thursday, March 26, 2009
Root Causes of Never-ending Second Amendment Dispute - Part 14
Fallacious Arguments, Rearranged History, and the Historians' Heller Amicus Brief
In order to further bolster the militia-centric argument in the historians' brief and divert attention away from the Second Amendment's actual Bill of Rights developmental history, Prof. Rakove presents the arms proposals made within state ratifying conventions in a substantially different order than that in which they were developed. The last two states to ratify, Virginia and New York, which included both right to arms and well regulated militia language in their proposals, are presented first, even though they are from late June and early July of 1788. The first three conventions, Pennsylvania, Massachusetts, and New Hampshire, which only included right to arms related language, are presented last and in reverse chronological order even though they are the earlier proposals. North Carolina's proposal including the exact provision as Virginia is ignored completely even though it was developed last.
Prof. Rakove's discussion of the right to bear arms proposal in Pennsylvania's 1787 Ratifying Convention, which was the first developed, is located dead last among such period proposals even though it was actually developed first ahead of five other arms related bill of rights proposals. This first-formed last-discussed approach seriously interferes with understanding the actual historical development of the political struggle to obtain a federal bill of rights during ratification and results in a barrage of erroneous statements in the brief. For this reason, all of Professor Rakove's arguments about specific arms protections proposed in state ratifying conventions are analyzed in this series in their proper chronological order of development.
The opening brief statement about discussion of the earliest arms provisions from the ratification era is:
"In contrast to the numerous discussions of the militia during the ratification debates, explicit references to the private ownership of firearms were few and scattered. The three noteworthy statements come from the Pennsylvania, Massachusetts, and New Hampshire conventions." [p.22]
After this statement, the brief addresses middle conventions, which will be discussed in a future post in proper developmental order. The first state ratifying convention was called by Pennsylvania and assembled in late November of 1787 at Philadelphia. One-third of its delegates opposed ratification of the Constitution, a major reason being lack of a federal bill of rights. Delegate Robert Whitehill proposed fifteen amendments to the Constitution that he described as a “bill of rights.” A Federalist majority of two-thirds opposed all of his proposed amendments. The arms related proposal of the minority is misquoted in the historians' brief, and only the first clause of the article containing it is presented. Thus, the entire Article proposed by Whitehill is presented here:
"7. That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power." [The Origin of the Second Amendment, p. 151]
The above provision is virtually a verbatim copy of Pennsylvania's 1776 Declaration of Rights Mason Triad (see Part 7) with language added to the Second Amendment predecessor. Also, the same Robert Whitehill who introduced this provision in 1787 helped write the 1776 original version. Prof. Rakove conveniently ignores these relevant facts, making no connection to the earlier version of this bill of rights related language.
Prof. Rakove states that it would be an incorrect reading of Whitehill's provision to accept it as evidence “that the founders thought of the right to bear arms as ensuring a private right to possess weapons.” [p.23]
The first problem for Prof. Rakove is that this statement directly contradicts his previous statement about Pennsylvania's convention related provision presented above.
The five reasons given in the brief to support this statement about Whitehill's proposal are examined below. These are all diversionary fallacious arguments.
“First, the dissenters who endorsed this proposal comprised only a third of the Pennsylvania convention."
The number who supported or opposed Whitehill's amendment indicates nothing about what its words indicate about the founders view regarding private possession of arms. This argument is a logical fallacy. Pennsylvania's Federalist majority, in addition to opposing Whitehill's Second Amendment related proposal, also opposed amendments relating to provisions found later in the First, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Amendments of the U.S. Bill of Rights. This brief entirely ignores the Bill of Rights related import of Federalist opposition to rights protections and the political struggle by Antifederalists in support of a bill of rights throughout ratification.
“Second, as previously noted, the reference to “the defense of themselves and their own state” had particular connotations in Pennsylvania, tied not to an individual’s right to defend his home, but to the colonial government’s failure to organize effective militia units prior to independence.”
As demonstrated in Parts 2 and 3 of this series, Pennsylvania history relative to a right of individual arms possession directly contradicted the historians' opinions as stated in their brief. Besides, this diversionary claim cannot explain away the provision's clear “no law shall be passed for disarming the people or any of them” language. If people have a right to bear arms for defense and killing game they must have a private right to possess arms. This argument is not only historically unfounded but also fallacious.
“Third, the proposed formula against "disarming" leaves ample room for police-power regulation by recognizing "real danger of public injury from individuals" as a legitimate basis for public action."
Rakove's third argument also does not back up the professor's specific claim about what the founders understood based on the provision and is thus fallacious. Whitehill's language could not be clearer that private possession of arms was guaranteed except for convicted criminals and extremely dangerous individuals.
"Fourth, the dissenters appeared disinclined to push this right too far. There is no further discussion of the private use of firearms in the explanatory passages of the Dissent." [p.24]
The lack of further discussion in a subsequent publication does not back up Professor Rakove's claim about what the language shows about the founders view on private ownership of arms. This is the fourth fallacious argument in a row about the same point.
"Fifth, and most important, these two clauses fell stillborn on the larger debate that continued to rage for months. . . . Had Anti-Federalists continued to want to push for the constitutional
protection of firearms, ample time remained to muster support in the nine states yet to act on the Constitution. Once published, however, these clauses of the Dissent were politically inert. If the Pennsylvania dissenters tried to place the question of a private right to arms before the body politic, their fellow Americans declined their summons." [p.24]
In direct contradiction to these statements, there were in fact five subsequently developed arms provisions in state ratifying conventions after Pennsylvania's, all of which included period language commonly understood as protecting an individual's right to possess and use arms. The two directly following Pennsylvania's were described by Prof. Rakove himself as relating to “private ownership of firearms” (see first quote at top of post).
This fifth argument connsists of a set of fallacious statements, none of which can enlighten regarding whether Whitehill's provision was understood as a private right to possess weapons or not. These statements, which appear directly before the final sentence about the ratification era in the brief, divert reader attention entirely away from the actual historical facts. Thus, not only are Prof. Rakove's final arguments above fallacious, they are directly contradicted by the period evidence once again and result in another complete inconsistency by Professor Rakove within the historian's brief.
The five arms provisions from subsequent conventions mentioned above will be carefully examined in following posts as numerous additional historical errors, inconsistencies, and fallacious arguments are exposed in the historians' Heller amicus brief.
In order to further bolster the militia-centric argument in the historians' brief and divert attention away from the Second Amendment's actual Bill of Rights developmental history, Prof. Rakove presents the arms proposals made within state ratifying conventions in a substantially different order than that in which they were developed. The last two states to ratify, Virginia and New York, which included both right to arms and well regulated militia language in their proposals, are presented first, even though they are from late June and early July of 1788. The first three conventions, Pennsylvania, Massachusetts, and New Hampshire, which only included right to arms related language, are presented last and in reverse chronological order even though they are the earlier proposals. North Carolina's proposal including the exact provision as Virginia is ignored completely even though it was developed last.
Prof. Rakove's discussion of the right to bear arms proposal in Pennsylvania's 1787 Ratifying Convention, which was the first developed, is located dead last among such period proposals even though it was actually developed first ahead of five other arms related bill of rights proposals. This first-formed last-discussed approach seriously interferes with understanding the actual historical development of the political struggle to obtain a federal bill of rights during ratification and results in a barrage of erroneous statements in the brief. For this reason, all of Professor Rakove's arguments about specific arms protections proposed in state ratifying conventions are analyzed in this series in their proper chronological order of development.
The opening brief statement about discussion of the earliest arms provisions from the ratification era is:
"In contrast to the numerous discussions of the militia during the ratification debates, explicit references to the private ownership of firearms were few and scattered. The three noteworthy statements come from the Pennsylvania, Massachusetts, and New Hampshire conventions." [p.22]
After this statement, the brief addresses middle conventions, which will be discussed in a future post in proper developmental order. The first state ratifying convention was called by Pennsylvania and assembled in late November of 1787 at Philadelphia. One-third of its delegates opposed ratification of the Constitution, a major reason being lack of a federal bill of rights. Delegate Robert Whitehill proposed fifteen amendments to the Constitution that he described as a “bill of rights.” A Federalist majority of two-thirds opposed all of his proposed amendments. The arms related proposal of the minority is misquoted in the historians' brief, and only the first clause of the article containing it is presented. Thus, the entire Article proposed by Whitehill is presented here:
"7. That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power." [The Origin of the Second Amendment, p. 151]
The above provision is virtually a verbatim copy of Pennsylvania's 1776 Declaration of Rights Mason Triad (see Part 7) with language added to the Second Amendment predecessor. Also, the same Robert Whitehill who introduced this provision in 1787 helped write the 1776 original version. Prof. Rakove conveniently ignores these relevant facts, making no connection to the earlier version of this bill of rights related language.
Prof. Rakove states that it would be an incorrect reading of Whitehill's provision to accept it as evidence “that the founders thought of the right to bear arms as ensuring a private right to possess weapons.” [p.23]
The first problem for Prof. Rakove is that this statement directly contradicts his previous statement about Pennsylvania's convention related provision presented above.
The five reasons given in the brief to support this statement about Whitehill's proposal are examined below. These are all diversionary fallacious arguments.
“First, the dissenters who endorsed this proposal comprised only a third of the Pennsylvania convention."
The number who supported or opposed Whitehill's amendment indicates nothing about what its words indicate about the founders view regarding private possession of arms. This argument is a logical fallacy. Pennsylvania's Federalist majority, in addition to opposing Whitehill's Second Amendment related proposal, also opposed amendments relating to provisions found later in the First, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Amendments of the U.S. Bill of Rights. This brief entirely ignores the Bill of Rights related import of Federalist opposition to rights protections and the political struggle by Antifederalists in support of a bill of rights throughout ratification.
“Second, as previously noted, the reference to “the defense of themselves and their own state” had particular connotations in Pennsylvania, tied not to an individual’s right to defend his home, but to the colonial government’s failure to organize effective militia units prior to independence.”
As demonstrated in Parts 2 and 3 of this series, Pennsylvania history relative to a right of individual arms possession directly contradicted the historians' opinions as stated in their brief. Besides, this diversionary claim cannot explain away the provision's clear “no law shall be passed for disarming the people or any of them” language. If people have a right to bear arms for defense and killing game they must have a private right to possess arms. This argument is not only historically unfounded but also fallacious.
“Third, the proposed formula against "disarming" leaves ample room for police-power regulation by recognizing "real danger of public injury from individuals" as a legitimate basis for public action."
Rakove's third argument also does not back up the professor's specific claim about what the founders understood based on the provision and is thus fallacious. Whitehill's language could not be clearer that private possession of arms was guaranteed except for convicted criminals and extremely dangerous individuals.
"Fourth, the dissenters appeared disinclined to push this right too far. There is no further discussion of the private use of firearms in the explanatory passages of the Dissent." [p.24]
The lack of further discussion in a subsequent publication does not back up Professor Rakove's claim about what the language shows about the founders view on private ownership of arms. This is the fourth fallacious argument in a row about the same point.
"Fifth, and most important, these two clauses fell stillborn on the larger debate that continued to rage for months. . . . Had Anti-Federalists continued to want to push for the constitutional
protection of firearms, ample time remained to muster support in the nine states yet to act on the Constitution. Once published, however, these clauses of the Dissent were politically inert. If the Pennsylvania dissenters tried to place the question of a private right to arms before the body politic, their fellow Americans declined their summons." [p.24]
In direct contradiction to these statements, there were in fact five subsequently developed arms provisions in state ratifying conventions after Pennsylvania's, all of which included period language commonly understood as protecting an individual's right to possess and use arms. The two directly following Pennsylvania's were described by Prof. Rakove himself as relating to “private ownership of firearms” (see first quote at top of post).
This fifth argument connsists of a set of fallacious statements, none of which can enlighten regarding whether Whitehill's provision was understood as a private right to possess weapons or not. These statements, which appear directly before the final sentence about the ratification era in the brief, divert reader attention entirely away from the actual historical facts. Thus, not only are Prof. Rakove's final arguments above fallacious, they are directly contradicted by the period evidence once again and result in another complete inconsistency by Professor Rakove within the historian's brief.
The five arms provisions from subsequent conventions mentioned above will be carefully examined in following posts as numerous additional historical errors, inconsistencies, and fallacious arguments are exposed in the historians' Heller amicus brief.
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