Root Causes of Never-ending Second Amendment Dispute - Part 21

Error Based Confusion Reigns In Historians' Heller Amicus Brief

Professor Rakove's brief presented historical material in proper
chronological order with one exception. That exception was
presentations of subsequently adopted right to keep arms proposals
from Virginia and New York that were followed in the brief by
discussion of three earlier proposals protecting the same right. (See
parts 14, 15, and 16 of this series where the Pennsylvania minority,
Massachusetts minority, and New Hampshire Convention proposals
protecting the keeping of arms are examined in proper chronological
order).

This relocation of discussion between the Virginia and Madison's
arms proposals about earlier protections for the right to keep arms
serves two purposes in the brief. Grouping the undeniably private
right protecting earlier proposals together at this point and
distinguishing them from the Virginia/New York proposals, which
combined the right to keep arms with a well regulated militia
reference, helps deemphasize the included right to keep arms
protection while advancing the militia powers only related view of
the historians. A second reason for using the earlier protections as
transition material separating the Virginia proposal from Madison's
version that was based directly upon it is to divert attention away
from the complete inconsistency between Madison's actual language
and the "reserved power of the states" argument that the historians
insist on reading into it.

This is James Madison's Second Amendment predecessor:

“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, p.654]

Here is one of the historians' interesting claims about Madison and
his proposal's intent:

Assertion #11
"But as the eventual Tenth Amendment demonstrates, Madison also
intended to rebut Anti-federalist charges of "consolidation" by
affirming the reserved powers of the states and the people, in a
manner akin to the Second Amendment." [p.25]

Fact Checking of Assertion #11
There is more than one factual historical problem buried within this
assertion. First, Madison's Second Amendment predecessor did not
even mention the "states" or "powers". Thus, it is quite clear that
Madison was not using his version of the Second Amendment
with any intention of protecting "reserved powers of the states"
relating to the militia.

Second, James Madison was a Federalist leader and one of the
Framers most responsible for taking powers away from the states
and giving paramount authority over them to a new federal
government in the U.S. Constitution. The historians' bold implication
that somehow Madison had changed his mind and for some strange
reason now intended to assure "reserved powers of the states"
relating to arming the militia is nothing short of preposterous.
What is most interesting is how the historians attribute Madison's
intent to Congressional Second Amendment language not found
anywhere in Madison's actual proposal. He changed Virginia's
"free state" reference to "free country" because his version was
intended to protect against the country's new government while
the language it was taken directly from originally protected against
Virginia's new state government.

The attempt to tie the Tenth Amendment to the Second Amendment
in the brief is without historical foundation because the two
amendments came from such completely different sources. The
Tenth Amendment predecessor was included in Virginia's list of
"other" amendments specifically because it was not developed from
the existing state bills of rights protections. It related to the division
of powers between the federal and state governments and the
people. It did not relate to any specific rights. The contrary was
true for Madison's Second Amendment predecessor. It and the
other protections later incorporated into the first eight
amendments were all included in a “bill of rights” that was
developed from state bill of rights provisions that Madison
understood as protecting rights of the people against abuse by
state governments.

The Second Amendment's well regulated militia reference was, for
example, developed directly from the 1776 Virginia Declaration of
Rights language because that was the verbatim source for the 1788
Virginia Ratifying Convention's proposed Bill of Rights clause.
Madison promised to support those Bill of Rights provisions in
order to achieve ratification of the U.S. Constitution by Virginia.
It was not the historians' proffered militia powers dispute that
brought about the Second Amendment. Instead, it was clearly the
Bill of Rights dispute that resulted in addition, not only of the Second
Amendment, but of the other first eight amendments to the
Constitution as well. [See OSA pp.457-462 for Virginia's proposed
bill of rights and list of other amendments.]

The powers reserved to the states in the Tenth Amendment include
those that are, specifically, "not delegated to the United States by
the Constitution". But power to provide for arming the militia was
delegated to the United States by the Constitution. Thus, if the Tenth
Amendment is anything like the Second Amendment as the historians
claim, neither amendment protects "reserved powers of the states"
over arming the militia because it is not a reserved power of the
states, and there is no period evidence that Madison intended to
make it one.

The Constitution itself does reserve certain militia powers to the
states - specifically officering and training of the militia. The Second
Amendment has nothing more to do with these actual "reserved
powers of the states" over the militia than it does with the powers
not reserved to the states by the Tenth Amendment, such as
arming the militia. It is also clear that the Federalists, who had
super-majorities in both houses of Congress had no reason
whatsoever to alter any of the Article I, Section 8 powers they had
previously partitioned between the federal and state governments
just as they wanted them.

Conclusion - Assertion #11 is Erroneous
Madison had no intention of protecting "reserved powers of the
states" in his Second Amendment predecessor because no such
terminology is found in his proposal. Also, there is nothing similar
about the Second and Tenth Amendments. Their sources and
purposes are separate and distinct. The Second relates to a specific
right that was developed from limitations on state authority
found in the existing state bills of rights, just like the other
provisions in the first eight amendments. The Tenth Amendment
relates to proper construction of the division of powers between
the state and federal governments and the people who gave power
to both. The historians' argument about "reserved powers of the
states" being a purpose of the Second Amendment is just another
clever manifestation of the collective rights argument, which
apparently has a thousand lives and emanations in the hands of gun
control supporters.

Root Causes of Never-ending Second Amendment Dispute - Part 16

Historians Ignore the Bill of Rights History of the Second Amendment

The arms protecting provision adopted by the New Hampshire Ratifying Convention, even though recognized right along with the Pennsylvania minority and Sam Adams Massachusetts proposals in the professional historians' Heller amicus brief as relating to “private ownership of firearms," was treated in exactly the same way as the other two provisions discussed in prior posts. All connection to the ongoing political struggle for a federal bill of rights was completely overlooked and no relationship to the future Bill of Rights provision protecting the people's right to arms noted. Even though New Hampshire's proposals obviously related to protections later found in the First, Second, Third, Fifth, Seventh, and Tenth Amendments, the historians disposed of the arms provision without further comment on that state's Bill of Rights proposals than by quoting the Second Amendment predecessor and stating it was "a formula unique to the discussions of 1787-1788." They provide no bill of rights related connection whatever, even though their brief is purportedly a presentation of the Second Amendment's history.

Here is the New Hampshire arms provision in its original bill of rights related context:

"X. That no standing army shall be kept up in time of peace, unless with the consent of three fourths of the members of each branch of Congress; nor shall soldiers, in time of peace, be quartered upon private houses, without the consent of the owners.
XI. Congress shall make no laws touching religion, or to infringe the rights of conscience.
XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion".[The Origin of the Second Amendment, p.446]

Within these three bill of rights related proposals are found the very first ratifying convention adopted predecessors for freedom of religion, the right to keep arms, and against quartering of soldiers, protections found in the First, Second, and Third Amendments. New Hampshire's language that "Congress shall never" make laws to "disarm any citizen" is exactly the type of language it used in its protection of religious freedom. In fact, New Hampshire doubles up on the strongest of restrictive language by declaring that "Congress shall make no laws" about religion or "to infringe" rights of conscience, adding restrictive language of the type later used in the Second Amendment to the exact quote of the restrictive language later used in the First Amendment.

New Hampshire's use of First Amendment type restrictive language to protect a Second Amendment related right is used by the historians to classify it as "unique" and ignore the clear relationship to the Second Amendment's strong protection for the right to keep arms. Failure by the historians to relate New Hampshire's bill of rights related arms proposal, or the prior ones in the Pennsylvania and Massachusetts conventions, to the ongoing political struggle for a federal bill of rights and later development of the Second Amendment is typical for this brief.

Such failure stands in stark contrast to discussion of a period Bill of Rights proposal by Richard Henry Lee in the Confederation Congress (misidentified as the Continental Congress). Professor Rakove's brief singles out Lee's proposed Bill of Rights to further a militia argument and to emphasize that it had no arms provision. That this is the sole mention of a ratification era “Bill of Rights” within the brief is bizarre considering the massive amounts of historical information relating to this subject and the stated intent of the brief to present the history of a U.S. Bill of Rights provision. As in this case of the New Hampshire arms proposal and R.H. Lee's proposed Bill of Rights, the historians' routinely pursue less relevant sources while disassociating clearly Second Amendment related bill of rights provisions rather than associating and connecting them historically to development of the Second Amendment.

This is a further reason why the historians brief is completely unreliable.