The District of Columbia vs Heller Dissent - Part 2

Justice Stevens' Sidelined

American History 

[Updated May 26, 2015]
Part 1  documented Justice Stevens' Heller dissent Second Amendment intent argument is founded on a conflation error because it directly conflicts with the statements of George Mason, the Ratification Era framer of its two-clause language. The dissent also linked the intent of Mason's Virginia Ratifying Convention Second Amendment proposal to those of North Carolina and New York, extensions of the conflation error to those sources.

     The Second Amendment proposals of all three states were based on the original two-clause Second Amendment version in George Mason's U.S. Bill of Rights model. The Virginia convention's sole alteration of Mason's language was dropping the word “to” before “bear arms” in its first clause. [1] North Carolina adopted Virginia's proposals verbatim and refused to ratify the Constitution until they were added. [2]
1 [See Part 1 for Virginia's version and below for Mason's original.]
2 [The Origin of the Second Amendment, pp.503-506]
     New York's Second Amendment predecessor, found in its ratification declaration of rights, was very similar to the other two states. It was based directly on Mason's original model. This resulted from George Mason providing New York's Antifederalist leaders a complete copy of his model for the U.S. Bill of Rights developed early in the Virginia Ratifying Convention, which met from June 2 through June 27, 1788. 

     The documents addressed below consist of Mason's U.S. Bill of Rights model [3], a partially developed list of Mason's "other" amendments [4], and letters from Patrick Henry, William Grayson, and George Mason, Virginia Convention Antifederalist leaders, to John Lamb, Antifederalist leader in New York City. These sources independently confirm the conflation error Justice Stevens' Heller dissent is founded upon.
3 [The Origin of the Second Amendment, pp.388-390]
4 [Mason Papers, Vol. III, pp.1055-1057]
     John Lamb sent letters to Mason, Henry, and Grayson seeking cooperation on a bill of rights and other amendments to the U.S. Constitution between Antifederalists in the New York and Virginia conventions. These were delivered on June 7, 1788, and all three Virginians responded affirmatively to Lamb on June 9. Mason, chairman of the amendments committee, included the complete model Bill of Rights and partial list of the amendments then under development with his letter. These letters and documents were transmitted to Lamb by Eleazer Oswald, the same special courier Lamb employed to hand deliver his requests regarding cooperation to the Virginians.

[For historical facts not specifically cited in this part, see the history and citations regarding Virginia-New York Ratifying Convention amendment cooperation found in The Founders' View of the Right to Bear Arms, pp.131-147]
     Patrick Henry's letter described the documents sent to Lamb as follows: 

"We have concluded to send you by Colo. Oswald a copy of the Bill of Rights & of the particular Amendments we intend to propose in our Convention". 
[Mason Papers, Vol. III, p.1071 note]
     The Bill of Rights was finalized and consisted entirely of provisions taken from existing state declarations of rights. The particular amendments list was still under development and related to alterations of specific parts of the proposed U.S. Constitution.
     William Grayson emphasized the incomplete nature of the particular amendments list:
"some of our proposed amendments are finished in the Committee; the others will be forwarded as soon as agreed on". 
[Mason Papers, Vol. III, p.1071 note]
     The particular or "other" amendments list sent to Lamb consisted of thirteen unnumbered provisions, five of which were not even included in the final twenty article version Patrick Henry introduced in Virginia on June 24. The amendments sent on June 9 were very much in a developmental state because analyzing, discussing and agreeing upon possible amendments to particular Constitutional provisions took considerable time and continued throughout Virginia's month long convention.
     That the Bill of Rights was completed very early in Virginia's convention, probably the first day or two, is not surprising because Mason himself had described the speed with which one could be developed the previous year in the Federal Convention:
“He wished the plan had been prefaced with a bill of rights, and would second a motion, if made for the purpose. It would give great quiet to the people, and, with the aid of the state declarations, a bill of rights might be prepared in a few hours". 
[The Origin of the Second Amendment, p.12]
     Mason's 1788 Bill of Rights sent to Lamb fit this description exactly as it was essentially a copy of the 1776 Virginia Declaration of Rights with some added provisions from other state declarations.
     The Bill of Rights model's original two-clause Second Amendment predecessor sent to John Lamb on June 9 read: 
“17. That the People have a Right to keep & to bear Arms; that a well regulated Militia, composed of the Body of the People, trained to Arms, is the proper natural and safe Defence of a free State;” 
[The Origin of the Second Amendment, p.390]
     Mason's June 9 letter to Lamb mentioned several parts of the Constitution to be addressed by his amendments committee in the future. This information, just as that in Part 1, establishes the direct conflict between the Founders' understanding and the Heller dissent argument regarding Second Amendment intent due to conflation.
"The Judiciary, the exclusive Legislative Power over the ten Miles Square, and the Militia, are Subjects to which our Attention will next be turned, and we shall communicate the Result of our Deliberations with all possible Dispatch." 
[Mason Papers III, p.1058]
     Mason and the amendments committee members understood they had addressed no amendments of the Constitution's militia powers as of June 9, and that none were included among the documents sent to John Lamb. The fact that the original two-clause Second Amendment predecessor was sent to Lamb as part of the model Bill of Rights on that date clearly indicates it was not understood by its framers as relating to amending the militia powers, which is the erroneous view advanced in Justice Stevens' dissent. These facts document and further exemplify the direct conflict between the founders' view of the Second Amendment and that advanced by the dissenting Heller justices.
     The period evidence presented here is entirely consistent with that in Part 1, and it independently verifies the conflation error the Heller dissent is based upon. As a result of this erroneous historical foundation, the dissenting Heller justices treat all period historical sources with well regulated militia language as support for their argument.
     Every Revolutionary and Ratification Era bill of rights predecessor of the Second Amendment with well regulated militia language is presented somewhere in the Heller dissent as supporting its opinion of intent. Since the dissent view of period well regulated militia language is based on erroneous conflation, use of closely related historical examples results in repeated conflation errors. The only evidence offered to verify the dissenting justices assertions regarding intent are appeals to their own authority, another type of fallacious argument. The Heller dissent view of Second Amendment intent is an interwoven series of fallacious appeals to its own authority based on error of fact due to conflation. The end result is a circular argument in which the very language at the heart of Second Amendment dispute, historical well regulated militia sources, are repeatedly offered as proof the dissent is factually correct.
     The Second Amendment intent argument in Justice Stevens' Heller dissent is entirely undermined by relevant period historical sources, which demonstrate it is founded on factual error.
[In Part 3, the understanding of Second Amendment framer George Mason regarding well regulated militia language will be examined, further documenting the sidelined American history nature of Justice Stevens' Heller dissent.]

The District of Columbia vs Heller Dissent - Part 1

Justice Stevens' Train Wreck

of American History

     The Supreme Court's 2008 District of Columbia vs Heller case resulted in a 5-4 split decision. Justice Scalia, writing the majority opinion, held that the Second Amendment was intended to protect the right of individuals to keep and bear arms. Justice Stevens penned a historically related dissent supported by Justices Breyer, Ginsburg, and Souter arguing it protected something entirely different, the militia institutions of the states. Justice Breyer, commenting on the Heller dissent in December of 2010, stated that "historically, the dissenters were right. And I think more of the historians were with us." [1] This last September, Justice Ginsburg, referencing the dissent indicated that her "view of the Second Amendment is one based on history." [2] The problem for the dissenting Heller justices is that the historical sources they quote not only fail to support their arguments, but instead directly contradict and prove them to be completely wrong.

   To begin unraveling the Heller dissenters strongly held views, the first point to determine is what specific period sources Justice Stevens and colleagues provide demonstrating the Founders understood the Second Amendment's purpose as they do? The sole period historical link in the dissent between the Second Amendment and any founder's understanding that it was intended to protect state militia authority is a quote of George Mason speaking in the Virginia Ratifying Convention on June 14, 1788. As Mason was chairman of the convention's Antifederalist amendments committee, he was the perfect choice for determining such understanding. [3] He developed the Bill of Rights and list of twenty "other" proposed amendments that were introduced by Patrick Henry and adopted by the Virginia Ratifying Convention.[4] North Carolina adopted the language of the Virginia proposals verbatim, [5] and New York included very similar declaration of rights provisions within its ratification based directly on Mason's proposals.[6] Thus, George Mason was author of the state ratifying convention model for the U.S. Bill of Rights - the ideal founder to quote regarding the intent of its provisions.

[3] The Founders' View of the Right to Bear Arms, p.132]

[4] The Origin of the Second Amendment, pp.450, 456-462]

[5] Origin, pp.503-508]

[6] Origin, pp.480-483; The Founders' View, pp.149-153]
     The subject under discussion by the Virginia Convention delegates on June 14 was the Constitution's Article 1, Section 8 powers - in this specific case, the militia powers. In order to link its understanding of the Second Amendment to that of Mason, the Heller dissent presents this selection from his speech warning that the states could be deprived of power to arm the militia under the new U.S. Constitution: 

“The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless—by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has the exclusive right to arm them.” 
[Heller Dissent, p.20]
     Following this quote, the dissent discusses the two-clause Second Amendment predecessors from the last three state ratifying conventions of 1788 as if they relate to the militia powers subject Mason was discussing: 
"But a number of States did propose to the first Federal Congress amendments reflecting a desire to ensure that the institution of the militia would remain protected under the new Government. The proposed amendments sent by the States of Virginia, North Carolina,and New York focused on the importance of preserving the state militias and reiterated the dangers posed by standing armies." 
[Heller Dissent, p.20]
     The next quote appearing in the dissent is Virginia's proposed Bill of Rights Second Amendment predecessor, described thus in the dissent: 
"The relevant proposals sent by the Virginia Ratifying Convention read as follows: “17th, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State.""

[Heller Dissent, p.21]
     Members of Congress developed the Second Amendment's clauses directly from this 1788 predecessor language. The dissenting justices clearly believe their Mason quote directly related to it. However, the dissenters' Mason quote actually contradicts their views. Why? Because the dissent ignores the fact that Mason did not propose the Second Amendment predecessor in his June 14th speech. In fact, he never mentioned any Second Amendment related predecessor or language in relation to the militia powers subject under discussion that day. He did, however, propose an entirely different amendment directly addressing the subject of his speech that the dissent simply ignored.
     This is the militia powers amendment Mason proposed on June 14: 
"I wish that, in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them. With this single exception, I would agree to this part"

[The Origin of the Second Amendment, p.402. Mason's entire June 14 speech on this subject can be found on pp.400-402 in The Origin of the Second Amendment.]
     The dissenting justices not only overlooked Mason's actual proposal from June 14, above, they also completely ignored Article 11 in Mason's list of "other" amendments adopted by the Virginia Ratifying Convention that directly related to his militia powers proposal and speech: 
"11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same."

[The Origin of the Second Amendment, p.460]
     George Mason's June 14, 1788 speech not only fails to support the dissent view of Second Amendment's intent, it proves the Heller dissent to be completely wrong about its intent. Mason's state militia power proposal of that date directly related to Article 11 of the "other" amendments proposed by Virginia, not to the Second Amendment predecessor. Since Mason prepared all of Virginia's amendments, and because he indicated the Article 11 related protection was the only change needed to the militia arming powers, it is clear the Second Amendment proposal from Virginia was not understood by him as protecting state militia authority. In an erroneous attempt to demonstrate Mason's view matched those of the dissenting Heller justices, the dissent simply appropriated the clear intent of Virginia's Article 11 militia powers amendment and reassigned it to the entirely separate and distinct Second Amendment predecessor found in Virginia's list of Bill of Rights protections. Mason's speech makes no such connection and, in fact, contradicts any such link.
     Mason's quote in the Heller dissent is its sole piece of period evidence indicating the Founders and dissent share the same view of Second Amendment intent. The dissenting justices' misinterpretation of their Mason speech snippet conclusively demonstrates that the dissent view of Second Amendment intent is founded on an erroneous conflation of intent with an entirely different amendment. Mason's complete comments on June 14, 1788, demonstrate the Heller dissent historical arguments to be based on a foundation of factual error.

[The next post will examine and document an entirely separate series of historical sources from George Mason's activities in the Virginia Ratifying Convention that further document Justice Stevens' Heller dissent to be a train wreck of American history.]

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]

Error as Foundation for the Mother of All Ideological Divides

Dissenting Heller Justices Bought the Arlington Memorial Bridge from Professional Historians
[Updated February 26, 2010]

This post links Professor Paul Finkelman's use of a Virginia Ratifying Convention disarming argument by George Mason, examined in the previous post, with his use of a different Mason disarming argument from the same source presented in the professional historians' Heller brief supporting Washington DC's gun control laws. The fact is that Professor Finkelman and his associates, who filed one of eight historically oriented briefs in Heller, fundamentally influenced Justice Stevens' dissent in that case. This post emphasizes the erroneous nature of the conflationary Mason Virginia Convention arguments in Professor Finkelman's McDonald and earlier Heller Supreme Court briefs, and presents additional historical information documenting the error. It also demonstrates that a Virginia militia powers amendment/Second Amendment conflation error has always been a major historical foundation of gun control supporters' arguments.

Professor Finkelman, one of four McDonald Pennsylvania history amici, was also one of the fifteen academics involved with the professional historians' amicus brief in the earlier Heller case. That earlier brief used a George Mason disarming argument from the Virginia Convention as the link between its militia powers dispute and the Second Amendment. However, the particular Mason argument presented there appeared fourteen sentences earlier in Mason's speech than the one presented in the McDonald Pennsylvania brief. [The Origin of the Second Amendment, p.401] Every erroneous aspect of the second Mason "'disarming" argument demonstrated in the previous post also applies to Professor Finkelman's usage of Mason's first "disarming" argument in the earlier historians' Heller brief as well.

Eight briefs presenting historical arguments supporting Washington DC's gun control laws were filed in the Heller case, and every one of them contained a 1788 Virginia Convention militia powers argument link to the Second Amendment [see list at the end of this paragraph]. Each of them was in error for the same reason, conflating non-related militia powers and bill of rights arguments and amendments. In those Heller historical briefs, Mason's first "disarming" argument is mentioned or quoted as the specific link to the Second Amendment, with one relying on Mason's related "various ways of destroying the militia" statement instead. By repeating this erroneous argument in their own amicus, the fifteen professional historians, including Professor Finkelman, gave their imprimatur to the erroneous Virginia Convention related claims in the other seven Heller historical briefs. This mass of historical misinformation backed up by a substantial group of professional historians naturally had an adverse affect on Heller because this is the completely erroneous view that was incorporated as the foundation of Justice Stevens' militia-centric dissent. He quoted the first Mason disarming statement, making it the pivotal link between his entirely militia powers related history and the Second Amendment. [Justice Stevens' Heller dissent, p.20] Justice Stevens' historically oriented dissent is entirely erroneous as a result. [List of briefs presenting erroneous argument of conflation: Petitioner's Brief p.24, Major American Cities p.17, Brady Center p.21, Am. Jewish Committee p.17, Professors of History, p.20, Chicago p.11, NY HI etal Brief pp.5-6, Petitioner's Reply Brief p.6. Briefs available here.]

An article by constitutional scholar David Hardy appeared last month in the online Cardozo Law Review, DeNovo, entitled, Ducking the Bullet: District of Columbia v. Heller and the Stevens Dissent, which specifically addresses errors of Justice Stevens. In addition to the overall excellent presentation, Mr. Hardy does a superlative job presenting the historical details of Antifederalist actions in the Virginia Ratifying Convention proving that the Second Amendment could not be the result of militia powers debate there. He includes even more details of Virginia history than presented in the previous Franklin Bridge post. Relying on a time-line of Antifederalist actions within the convention and the existence of an early partial list of non-bill of rights amendments lacking a militia powers provision, he proves that the militia powers arguments and the amendment resulting from them appeared later and were unrelated to the earlier Second Amendment provision, which was part of a completed bill of rights formed early in the convention. [pp.76-77] David Hardy's article is a must read for those interested in Second Amendment history.

Another essential piece of historical evidence exists that backs up the facts in David Hardy's article, as well as the points in part 4 of the Franklin Bridge series, about the erroneous nature of arguments linking militia powers dispute to the Second Amendment in the 1788 Virginia Ratifying Convention. George Mason, chairman of the Antifederalist amendments committee, sent a letter to New York Antifederalists early in the convention on June 9th. Included with the letter was the complete proposed Bill of Rights, which included the two-clause Second Amendment predecessor, and the partial list of "other" non-bill of rights amendments, which did not include the later developed militia powers proposal identified in Mr. Hardy's article. Mason clearly indicated in his letter that proposed amendments of the Constitution's militia powers had yet to be addressed by the amendments committee. [The Founders' View of the Right to Bear Arms, pp.133-134] Thus, the author of all proposed amendments from Virginia, both the bill of rights as well as the "other" amendments, did not view the Second Amendment predecessor as an amendment of the Article 1, Section 8 militia powers. This is directly in conflict with the beliefs of gun control supporters, including the professional historians who have been re-writing American history to back up their mistaken views.

There are at least three separate historical facts from the Virginia Ratifying Convention conclusively demonstrating the original proposal of the two-clause Second Amendment progenitor from Virginia was not related to period state militia powers arguments, and that gun control supporters' claims to the contrary are completely erroneous. First, the Virginia Convention militia powers link to the Second Amendment erroneously conflates it with an entirely different amendment specifically relating to militia powers, as documented in part 4 of the Franklin Bridge series. Second, the time-line evidence from the convention developed by David Hardy indicates development of the erroneously linked subjects occurred at different times and were for substantially different purposes. Finally, Mason's letter accompanying the bill of rights and partial amendments list on June 9, 1788 conclusively confirms the time-line evidence and indicates that no militia powers amendment had yet been discussed by the amendments committee at the time the bill of rights containing the Second Amendment predecessor had already been developed, completed, and sent to New York.

A Virginia militia powers amendment/Second Amendment conflation error is the major historical foundation of gun control supporters' arguments since the mid-1960's. The following list of seven law review and one Journal of American History articles going back in time to 1966 all use an erroneous Virginia Ratifying Convention argument conflating the militia powers dispute and the Second Amendment. The earliest two do not directly use either of Mason's disarming statements. However, starting with the Weatherup 1975 article, a Mason disarming statement or quote became the norm for making this erroneous conflation. The latest two articles, from the 2000 Chicago-Kent Law Review Symposium on the Second Amendment, were intended not only to to influence the U.S. Fifth Circuit Court of Appeals' U.S. vs Emerson decision, but those of any subsequent federal court cases as well. Fortunately, five Supreme Court Justices were not in a bridge buying frame of mind in Heller, nor were two Fifth Circuit judges in Emerson, preferring the actual historical facts found in period sources to stories about history from professional hiStory tellers.

Law Review Articles Containing a 1788 Virginia Convention
Militia Powers/Second Amendment Conflation Error

2000, Rakove, The Second Amendment: The Highest Stage of Originalism, 76 Chicago-Kent Law Review Symposium on the Second Amendment, 103

2000, Uviller & Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 Chicago-Kent Law Review Symposium on the Second Amendment, 403

1998, Bogus, The Hidden History of the Second Amendment, 31 University of California at Davis Law Review, 309

1984, Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71#1 Journal of American History

1976, Santee, The Right to Keep and Bear Arms, 26#2, Drake Law Review, 26

1975, Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 Hastings Constitutional Law Quarterly, 961

1969, Levine & Saxe, The Second Amendment: The Right to Bear Arms, 7 Houston Law Review, 1

1966, Feller & Gotting, The Second Amendment: A Second Look, 61 Northwestern University Law Review, 46

The above information indicates that supporters of gun control have based their interpretation of Second Amendment history on a fundamental error for nearly half a century, and they have consistently ignored period evidence contradicting their beliefs for that entire period of time. Since 1999, a number of professional historians have been recruited to back up legal professionals supporting gun control in the ongoing Second Amendment dispute. Some published their views in the 2000 Chicago-Kent Law Review. More recently, a number of the recruited historians filed briefs presenting their views about Second Amendment history to the Supreme Court in the Heller case, and most recently in McDonald vs Chicago. These professional historians' briefs supporting gun control laws have consistently been in error regarding period facts, statements, and views of the Founders that are most relevant for understanding the Second Amendment, points examined and documented in three different series of posts at this Blog. Their errors have been so numerous and egregious as to make it perfectly clear to any unbiased individual that nothing these historians present about the Second Amendment can be relied upon as accurate.

The period evidence directly contradicts the belief that the terms "well regulated militia" and "state" in the Second Amendment's first clause are references indicating any intent to protect state militia power. Such arguments have often been advanced in attempts to prove that the Second Amendment is not related to individual rights. The particular historical materials examined in David Hardy's Cardozo Law Review article and the previous post prove that both the Heller dissent and the historians' arguments using the militia powers debate in Virginia as a link to the Second Amendment are erroneous. Because the Second Amendment predecessor originated in Virginia, these facts also prove that every argument ever made by supporters of gun control claiming that the Second Amendment relates to state power over the militia is erroneous. That information added to the fact that the original bill of rights language containing "well regulated militia" and "free state" came directly from Virginia's bill of rights provision limiting state legislative power brings all ambiguity in this matter to an end, at least for those willing to rely on documented historical facts.

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 2

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.

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.]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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