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.]
Tuesday, February 2, 2010
Monday, January 25, 2010
Historians Try to Sell Brooklyn London Bridge to U.S. Supreme Court - Part 5
More Error and Omission in the Historians' McDonald Amicus Brief
[updated January 26, 2010]
As documented in part 4 of this series, Americans understood the arms provision found in the English Bill of Rights to be protection for a natural right. A "very great Majority" "of the Freeholders and other Inhabitants of the Town of Boston" voted it as "the opinion of this Town" that the arms provision of the English Bill of Rights "is founded in Nature". Also, Samuel Adams, in defending the vote by Boston's inhabitants, stated that the English arms provision related to a "natural Right which the People have reserved to themselves, confirmed by the Bill of Rights, to keep Arms for their own Defence".
Boston's vote was related to that American understanding of a natural right to "keep" arms, which was bolstered by the English Bill of Rights and a militia law of Massachusetts requiring every man and householder to to obtain and always be provided with arms and ammunition. The response from Parliament to the inhabitants' vote indicates a desire on the part of the British that Americans not always possess arms and ammunition.
The second and third parts of this series provided documentation that the historians' claim "[h]istorical records show that the Second Amendment was unrelated to any seizure of colonists’ arms by British troops" was erroneous.
The historians assertion immediately following that claim, which is examined presently, stated:
"Not a single document – no declaration, petition, or piece of correspondence, public or private – references any claim that the British violated the colonists’ right to “have arms.” [p.36]
This statement is not only false, it is utterly preposterous. Examine the following excerpt from the Declaration of the Continental Congress, December 6, 1775:
"We condemn, and, with arms in our hands - a resource which Freemen will never part with - we oppose the claim and exercise of unconstitutional powers, to which neither the Crown or Parliament were ever entitled. By the British Constitution, our best inheritance, rights, as well as duties, descend upon us: We cannot violate the latter by defending the former: We should act in diametrical opposition to both, if we permitted the claims of the British Parliament to be established, and the measures pursued in consequence of those claims to be carried into execution among us. Our sagacious ancestors provided mounds against the inundation of tyranny and lawless power on one side, as well as against that of faction and licentiousness on the other. On which side has the breach been made?" [Delegates, II, 449; see FVRBA, p.59-60]
This is a complaint about violation by the British of all the "rights" protected "[b]y the British Constitution". Among those "rights" that Americans understood to "descend upon" themselves from "the British Constitution" was protection for the natural right of having arms. The fact that Americans had to defend all of those "rights" against claims of unlimited authority and British actions that repeatedly involved disarming Americans, eventually spawning the defensive hostilities mentioned above, directly contradicts the historians' view. Congress' earlier Declaration of the Causes and Necessity of Taking Up Arms specified that the seizure of arms from Boston's inhabitants was one of the causes of hostilities. [See Part 3] Those hostilities were engaged in to defend Americans' rights, one of which was to "have arms".
Americans referred to the provisions of the English Bill of Rights as "natural Rights", even though the British understanding described in Blackstone was of protections against the Crown subject to Parliamentary statute. This British understanding of legislative supremacy was also the basis of their claimed right to bind Americans in all cases whatsoever. The British understood the "have arms" provision to be one exercisable only under authority of government ("as allowed by law"). Americans understood the English Bill of Rights "have arms" protection as a natural right simply being protected in the English document.
The historians brief attempts to interpret an American Bill of Rights provision based on the British understanding of the English Bill of Rights. This is a major flaw that underlies everything presented in the brief because Americans rejected British authority and the British form of government. In their place, Americans established new state governments with constitutions containing bills of rights protecting the people against government violation of their natural rights. The historians never mention the state bills of rights, which are American revolutionary era inventions that were intended to "raise barriers against power in all forms and departments of Government", as Madison stated in 1789. [OSA, p.657]
[updated January 26, 2010]
As documented in part 4 of this series, Americans understood the arms provision found in the English Bill of Rights to be protection for a natural right. A "very great Majority" "of the Freeholders and other Inhabitants of the Town of Boston" voted it as "the opinion of this Town" that the arms provision of the English Bill of Rights "is founded in Nature". Also, Samuel Adams, in defending the vote by Boston's inhabitants, stated that the English arms provision related to a "natural Right which the People have reserved to themselves, confirmed by the Bill of Rights, to keep Arms for their own Defence".
Boston's vote was related to that American understanding of a natural right to "keep" arms, which was bolstered by the English Bill of Rights and a militia law of Massachusetts requiring every man and householder to to obtain and always be provided with arms and ammunition. The response from Parliament to the inhabitants' vote indicates a desire on the part of the British that Americans not always possess arms and ammunition.
The second and third parts of this series provided documentation that the historians' claim "[h]istorical records show that the Second Amendment was unrelated to any seizure of colonists’ arms by British troops" was erroneous.
The historians assertion immediately following that claim, which is examined presently, stated:
"Not a single document – no declaration, petition, or piece of correspondence, public or private – references any claim that the British violated the colonists’ right to “have arms.” [p.36]
This statement is not only false, it is utterly preposterous. Examine the following excerpt from the Declaration of the Continental Congress, December 6, 1775:
"We condemn, and, with arms in our hands - a resource which Freemen will never part with - we oppose the claim and exercise of unconstitutional powers, to which neither the Crown or Parliament were ever entitled. By the British Constitution, our best inheritance, rights, as well as duties, descend upon us: We cannot violate the latter by defending the former: We should act in diametrical opposition to both, if we permitted the claims of the British Parliament to be established, and the measures pursued in consequence of those claims to be carried into execution among us. Our sagacious ancestors provided mounds against the inundation of tyranny and lawless power on one side, as well as against that of faction and licentiousness on the other. On which side has the breach been made?" [Delegates, II, 449; see FVRBA, p.59-60]
This is a complaint about violation by the British of all the "rights" protected "[b]y the British Constitution". Among those "rights" that Americans understood to "descend upon" themselves from "the British Constitution" was protection for the natural right of having arms. The fact that Americans had to defend all of those "rights" against claims of unlimited authority and British actions that repeatedly involved disarming Americans, eventually spawning the defensive hostilities mentioned above, directly contradicts the historians' view. Congress' earlier Declaration of the Causes and Necessity of Taking Up Arms specified that the seizure of arms from Boston's inhabitants was one of the causes of hostilities. [See Part 3] Those hostilities were engaged in to defend Americans' rights, one of which was to "have arms".
Americans referred to the provisions of the English Bill of Rights as "natural Rights", even though the British understanding described in Blackstone was of protections against the Crown subject to Parliamentary statute. This British understanding of legislative supremacy was also the basis of their claimed right to bind Americans in all cases whatsoever. The British understood the "have arms" provision to be one exercisable only under authority of government ("as allowed by law"). Americans understood the English Bill of Rights "have arms" protection as a natural right simply being protected in the English document.
The historians brief attempts to interpret an American Bill of Rights provision based on the British understanding of the English Bill of Rights. This is a major flaw that underlies everything presented in the brief because Americans rejected British authority and the British form of government. In their place, Americans established new state governments with constitutions containing bills of rights protecting the people against government violation of their natural rights. The historians never mention the state bills of rights, which are American revolutionary era inventions that were intended to "raise barriers against power in all forms and departments of Government", as Madison stated in 1789. [OSA, p.657]
Historians Try to Sell Brooklyn London Bridge to U.S. Supreme Court - Part 4
Errors, Misquotes, and Omissions in the Professional Historians' McDonald Amicus Brief
[updated]
As documented in the three previous posts of this series, the issues raised in the professional historians McDonald brief ignore the most relevant information relating to the American origin of the Second Amendment, the development of state bills of rights. The first part of this series examined errors of fact and misquotes diverting away from any mention of these revolutionary era sources. This fourth part examines a major argument presented in the brief relating to the vote of a Boston Town Meeting in 1768. Regarding this vote, the historians misquote the period document, misattribute one of its statements, and incomprehensibly misinterpret not only its source, which they cite, but its purpose.
The historian's brief includes the following statement and quote, described as relating to "the 1768 Boston Town Council’s militia resolve" [p.3]:
"the resolve stated its purposes as the "necessary Defence of the community that the good and wholesome Law of this Province, [which requires] every listed Soldier and other householder ... [to be] provided with a well fix’d Firelock, Musket, Accoutrements and Ammunition." [p.30, emphasis added]
This is the source referred to and misquoted above:
"Upon a Motion made and seconded, the following Vote was passed by a very great Majority ---Vizt.---
Whereas, by an Act of Parliament of the First of King William and Queen Mary it is declared that the Subjects being Protestants, may have Arms for their Defence; It is the opinion of this Town, that the said Declaration is founded in Nature Reason and sound Policy, and is well adapted for the necessary defence of the Community----
And for as much as by a good and wholesome Law of this Province, every listed Soldier, and other Householder (except Troopers who by Law are to be otherwise provided) shall be always provided with a well fixed Fire Lock Musket, Accoutrement and Ammunition as in said Law particularly mentioned, to the satisfaction of the Commission Officers of the Company; and as there is at this Time a prevailing apprehension, in the Minds of many, of an approaching War with France: In order that the Inhabitants of this Town may be prepared in case of sudden danger; Voted, that those of the said Inhabitants who may at present be unprovided, be and hereby are requested duly to observe the said Law at this Time --------" [Report of the Record Commissioners, Boston Town Records 1758-1769, City Document No. 88, p.264, emphasis added]
For ease of identification, two words are made bold in the historians' misquote and seven in the actual quote of Bostons' vote. The quote provided in the historians' brief deletes the seven bold opening words of the vote's operative section ("And for as much as by a") and substitutes in their place the two bold words ("that the") in their quote. The historians thus engage in two different unjustifiable actions in linking the "Whereas" and operative sections of the document. They delete the original words without indication and replace them with words picked out of thin air. Their associated statement also misattributes the ending description of the "Whereas" section, which specifically relates to the English Bill of Rights, as instead a statement of the purpose of Massachusetts' law. The voted provision did state a specific purpose, but it is not found in the mangled quote presented by the historians. The purpose of the vote was "that the inhabitants of this town may be prepared in case of sudden danger".
Contrary to the description used seven times in the historians' brief, neither the term "resolve" nor "resolution" is found in this document, nor is there any reference to a "Boston Town Council". The historians' understanding of who composed a "Boston Town Council" is as follows:
"the right of "self-preservation" was to be exercised not by individuals acting privately or independently, but as a militia organized by their elected representatives, whether Parliament, the Boston Town Council, or otherwise." [pp.7-8]
Referring to a "Council" or "Town Council" or "Boston Town Council" a total of nine times in the brief, it is obvious that the historians are under the mistaken impression there was a "Boston Town Council" consisting of elected representatives who passed the "resolve" they discuss at length. But the very source they cite for all of this information also directly contradicts their interpretation of who passed it:
"AT A MEETING OF THE FREEHOLDERS AND OTHER INHABITANTS OF THE TOWN OF BOSTON, LEGALLY QUALIFIED AND WARN[E]D IN PUBLIC TOWN MEETING ASSEMBLED (1768)" [Note 82, p.30]
This source indicates the vote originated in a town meeting where inhabitants vote directly. Not only do the historians confuse who passed the vote, they also mix up exactly what the vote was all about in this statement:
"the Council issued a resolve invoking the Declaration of Rights’ "have arms" provision by calling upon the Massachusetts militia to defend Boston." [p.29]
As anyone can read above in the reprint of the vote, there was no "Council' involved, the Massachusetts militia were not mentioned, nor were they requested to defend Boston. The men of Boston simply "requested" those inhabitants of the town who did not possess arms to observe the law so that they would be prepared in case of sudden danger.
The historians make another erroneous assertion in their brief:
"Just as Parliament had called upon the militia to defend against the tyranny of Charles I and James II, the Boston Town Council asserted its right of "self-preservation" by invoking the 1693 Militia Act." [p.30]
Again, there was no "Boston Town Council" asserting "its" right of self preservation. What is interesting is the inability of the historians to recognize the fact that what the inhabitants of Boston did was prepare to openly resist the tyranny of Parliament and the current king by simply following existing law, which protected the exercise of their natural rights. The inhabitants of Boston stated in their vote that the arms provision of the English Bill of Rights "is founded in Nature". The historians even quote Samuel Adams describing Boston's vote as relating to the:
"natural Right which the People have reserved to themselves, confirmed by the Bill of Rights, to keep Arms for their own Defence". [p.31]
This vote of Boston raises some questions that the uninquisitive historians naturally fail to ask. It implies that British officials were not making sure that every able-bodied man possessed arms as the law required. Considering the nature of the disagreements between the colonists and the British, such inaction on the part of the governor, a British appointee, seems quite natural. And the response of the British to the Bostonians' vote supports the view that this was purposeful inaction on the governor's part.
In a February 9, 1769 resolve, Parliament condemned the Boston inhabitants' vote as being "illegal and unconstitutional", and this in spite of the fact that the Town Meeting not only cited the English Bill of Rights but simply requested inhabitants to comply with the law. This indicates a difference of opinion about who should control arms, government or the people themselves. Boston's vote and later actions in America relating to obvious disagreement over arms possession are undoubtedly why the inhabitants of Massachusetts later included a provision in the declaration of their rights established as part of the state constitution specifying that the people have a "right" to keep arms. It is most interesting that such an important subject relating to the Second Amendment is not mentioned by the historians.
So, the historians confuse a vote of the freemen of Boston in Town Meeting with a "resolve" of a "Boston Town Council" that did not exist. They also misquote the vote, misatribute one of its statements, seriously misinterpret its stated purpose, and fail to examine its clear implications relating to disagreement over who should control arms, Parliament or the people. All of the historians' arguments are largely diversionary in nature. The historians are avoiding having to deal with American state bill of rights development, which is the most relevant information for understanding the Second Amendment.
Friday, January 22, 2010
Historians Try to Sell Brooklyn London Bridge to U.S. Supreme Court - Part 3
Errors, Misquotes, and Omissions in the Professional Historians McDonald Amicus Brief
[Updated]
As documented in the previous post, historical records directly link the Second Amendment and the 1780 Massachusetts Declaration of Rights provision indicating that the people have a right to keep and to bear arms. This post examines historical records linking British seizure of arms in Massachusetts to that state's declaration of rights arms provision, which is the only one of eight related period provisions specifying a right to "keep" arms.
The historians' McDonald brief misrepresents the Continental Congress' Declaration of the Causes and Necessity of Taking Up Arms, passed on July 6, 1775. Their completely misleading description of British "seizure of arms from Boston’s departing inhabitants", [p.37] an occurrence directly following the initiation of hostilities on April 19, 1775, misrepresents the incident. In return for the inhabitants, who were confined within the fortified town, depositing all of their arms with the town selectmen for safekeeping so they could be marked and returned to their owners at some future period, General Gage guaranteed the vast majority who wanted to depart that they could do so with all of their other possessions. The arms thus deposited by the inhabitants were seized by the British, and General Gage allowed only a small number of Bostonians to leave who desired to do so. Although this is the brief's sole mention of a specific British arms seizure, it is only part of the disarming activities carried on by the British in that colony. [The Founders View of the Rights to Bear Arms, pp.52-53]
Hostilities of the American Revolution began in Massachusetts when Major Pitcairn, leading advance British troops on their way to Concord to seize and destroy arms, attempted to disarm Americans on the green at Lexington. However, long before this disarming incident, which resulted in outright war, the British had been disarming Americans in Massachusetts by seizing gunpowder and arms for a considerable period of time. Almost seven months earlier, on September 1, 1774, Gage ordered out a secret military detail to seize the publicly owned powder in the Charlestown powder house and move it to a location under his military control. Due to false reports of casualties, this powder alarm as it was called resulted in tens of thousands of armed provincials marching toward Boston until the rumors were counteracted. General Gage ordered that no gunpowder, even that privately owned and stored in the Boston powder house, could be removed without his permission, which, unsurprisingly, could not be obtained. [FVRBA, pp.51, 36-38]
Period firearms were useless other than as clubs without gunpowder. Thus, seizure of powder was the equivalent of seizure of arms. General Gage started seizing all arms and ammunition being transported out through the land entrance of Boston after it was fortified. It was not until October 19, 1774 (with notification reaching the colonies much later) that the British halted importation of arms and ammunition into the colonies by law. The subsequent disarming of Bostonians by seizure of their arms after hostiles started in April of 1775 was intensified during July with a proclamation that anyone in Boston still found in possession of arms would be deemed an enemy of the king's government and punished. Mere possession of a firearm in one's home earned the violator of Gage's proclamation 75 days in prison. Thus, the people of Massachusetts, and especially the inhabitants of Boston, had been subjected to extensive seizure of arms by the British over a considerable period of time, from the beginning of September 1774 into April of 1775, and for Boston's inhabitants on until the British were actually driven out in 1776. [FVRBA, pp.36-39, 51-53, 57]
There was nothing even approaching the ongoing attempts to disarm the people of Massachusetts occurring in any of the other colonies. A case of arms stopped by customs officials in New York was much publicized, and the governor of Virginia seized some public powder and had it placed on a British vessel, resulting in Patrick Henry's march in May of 1775 to obtain possession or reimbursement. [FVRBA, p.53-54] But only in Massachusetts had there been ongoing and preplanned attempts to disarm the population for a long period of time extending from well prior to hostiles until they began, and in the case of the Bostonians, until well after.
In its attempts to tie the Second Amendment to English documents and ideas using American revolutionary era comments on self-preservation, the historians' brief completely ignores the eight revolutionary era American state bills of rights, every one of which contained a Second Amendment related progenitor. Four of these, including the very first, consisted of well regulated militia references understood as relating to an armed populace, while the other four used people have a right to bear arms language understood similarly. But only one state, the very last to adopt bear arms style language, specifically added the word "keep" in relation to arms in its Second Amendment predecessor. An attentive reader will not have to guess which state it was after viewing the more relevant American history connected to Second Amendment development presented in this and the previous post. It was Massachusetts, whose bill of rights arms provision the historians' were unable to accurately quote for some odd reason.
Recall that the historians' brief includes this claim:
"Historical records show that the Second Amendment was unrelated to any seizure of colonists’ arms by British troops." [36]
Based on the historical records discussed above and in the previous post, this assertion by the historians is not only erroneous but preposterous. Massachusetts' Declaration of Rights is the only one of eight equivalent state provisions, all of which contain Second Amendment predecessors, to specify that the people have a right to "keep" arms. That language is a direct result of the ongoing and extensive British actions seizing arms from the people of Massachusetts, and more particularly from the inhabitants of Boston, who were treated as nothing more than expendable hostages by the British after hostilities began.
The professional historians' McDonald brief supporting Chicago's gun control laws is completely unreliable historically and purposefully avoids discussion of the most relevant revolutionary era sources relating to the Second Amendment, the eight revolutionary era state bills of rights.
[Updated]
As documented in the previous post, historical records directly link the Second Amendment and the 1780 Massachusetts Declaration of Rights provision indicating that the people have a right to keep and to bear arms. This post examines historical records linking British seizure of arms in Massachusetts to that state's declaration of rights arms provision, which is the only one of eight related period provisions specifying a right to "keep" arms.
The historians' McDonald brief misrepresents the Continental Congress' Declaration of the Causes and Necessity of Taking Up Arms, passed on July 6, 1775. Their completely misleading description of British "seizure of arms from Boston’s departing inhabitants", [p.37] an occurrence directly following the initiation of hostilities on April 19, 1775, misrepresents the incident. In return for the inhabitants, who were confined within the fortified town, depositing all of their arms with the town selectmen for safekeeping so they could be marked and returned to their owners at some future period, General Gage guaranteed the vast majority who wanted to depart that they could do so with all of their other possessions. The arms thus deposited by the inhabitants were seized by the British, and General Gage allowed only a small number of Bostonians to leave who desired to do so. Although this is the brief's sole mention of a specific British arms seizure, it is only part of the disarming activities carried on by the British in that colony. [The Founders View of the Rights to Bear Arms, pp.52-53]
Hostilities of the American Revolution began in Massachusetts when Major Pitcairn, leading advance British troops on their way to Concord to seize and destroy arms, attempted to disarm Americans on the green at Lexington. However, long before this disarming incident, which resulted in outright war, the British had been disarming Americans in Massachusetts by seizing gunpowder and arms for a considerable period of time. Almost seven months earlier, on September 1, 1774, Gage ordered out a secret military detail to seize the publicly owned powder in the Charlestown powder house and move it to a location under his military control. Due to false reports of casualties, this powder alarm as it was called resulted in tens of thousands of armed provincials marching toward Boston until the rumors were counteracted. General Gage ordered that no gunpowder, even that privately owned and stored in the Boston powder house, could be removed without his permission, which, unsurprisingly, could not be obtained. [FVRBA, pp.51, 36-38]
Period firearms were useless other than as clubs without gunpowder. Thus, seizure of powder was the equivalent of seizure of arms. General Gage started seizing all arms and ammunition being transported out through the land entrance of Boston after it was fortified. It was not until October 19, 1774 (with notification reaching the colonies much later) that the British halted importation of arms and ammunition into the colonies by law. The subsequent disarming of Bostonians by seizure of their arms after hostiles started in April of 1775 was intensified during July with a proclamation that anyone in Boston still found in possession of arms would be deemed an enemy of the king's government and punished. Mere possession of a firearm in one's home earned the violator of Gage's proclamation 75 days in prison. Thus, the people of Massachusetts, and especially the inhabitants of Boston, had been subjected to extensive seizure of arms by the British over a considerable period of time, from the beginning of September 1774 into April of 1775, and for Boston's inhabitants on until the British were actually driven out in 1776. [FVRBA, pp.36-39, 51-53, 57]
There was nothing even approaching the ongoing attempts to disarm the people of Massachusetts occurring in any of the other colonies. A case of arms stopped by customs officials in New York was much publicized, and the governor of Virginia seized some public powder and had it placed on a British vessel, resulting in Patrick Henry's march in May of 1775 to obtain possession or reimbursement. [FVRBA, p.53-54] But only in Massachusetts had there been ongoing and preplanned attempts to disarm the population for a long period of time extending from well prior to hostiles until they began, and in the case of the Bostonians, until well after.
In its attempts to tie the Second Amendment to English documents and ideas using American revolutionary era comments on self-preservation, the historians' brief completely ignores the eight revolutionary era American state bills of rights, every one of which contained a Second Amendment related progenitor. Four of these, including the very first, consisted of well regulated militia references understood as relating to an armed populace, while the other four used people have a right to bear arms language understood similarly. But only one state, the very last to adopt bear arms style language, specifically added the word "keep" in relation to arms in its Second Amendment predecessor. An attentive reader will not have to guess which state it was after viewing the more relevant American history connected to Second Amendment development presented in this and the previous post. It was Massachusetts, whose bill of rights arms provision the historians' were unable to accurately quote for some odd reason.
Recall that the historians' brief includes this claim:
"Historical records show that the Second Amendment was unrelated to any seizure of colonists’ arms by British troops." [36]
Based on the historical records discussed above and in the previous post, this assertion by the historians is not only erroneous but preposterous. Massachusetts' Declaration of Rights is the only one of eight equivalent state provisions, all of which contain Second Amendment predecessors, to specify that the people have a right to "keep" arms. That language is a direct result of the ongoing and extensive British actions seizing arms from the people of Massachusetts, and more particularly from the inhabitants of Boston, who were treated as nothing more than expendable hostages by the British after hostilities began.
The professional historians' McDonald brief supporting Chicago's gun control laws is completely unreliable historically and purposefully avoids discussion of the most relevant revolutionary era sources relating to the Second Amendment, the eight revolutionary era state bills of rights.
Thursday, January 21, 2010
Historians Try to Sell Brooklyn London Bridge to U.S. Supreme Court - Part 2
Errors, Misquotes, and Omissions in the Professional Historians' McDonald Amicus Brief
[Updated]
The historians' brief claims that:
"Historical records show that the Second Amendment was unrelated to any seizure of colonists’ arms by British troops." [36]
American historical records directly contradict this claim, instead indicating that the Second Amendment was clearly related to seizure of Americans' privately owned arms by the British in Massachusetts. As noted in Part 1, the essential information missing from the historians' McDonald brief relates to development of the eight state bills of rights, each of which included an American progenitor of the Second Amendment. Examination of these provisions and their relationship to development of the Second Amendment is the key to unlocking the American constitutional history avoided and missing in the historians' brief.
The state bills of rights provided no protection against violation of individual rights under laws passed by the new federal government proposed by the 1787 Federal Convention. The new Constitution provided that federal laws were paramount to state constitutions. Thus, George Mason sought a bill of rights based on the protections of the state bills of rights near the end of the convention, but a committee to form one was rejected by an overwhelming Federalist majority. As a result, Mason refused to sign the Constitution and became a major ratification era opponent seeking a bill of rights based upon the state power limiting bills of rights provisions.
In 1788, while chairman of an Antifederalist amendments committee in the Virginia Ratifying Convention, Mason wrote a model bill of rights for the proposed U.S. Constitution. This was based directly on the 1776 Virginia Declaration of Rights, of which Mason was the author, with added language taken from other state bills of rights. His 1788 model was adopted almost verbatim by Virginia, and Virginia's proposal was adopted by North Carolina. Mason also sent his model bill of rights to Antifederalist leaders in New York. As a result, New York's ratification declaration of rights included a Second Amendment provision nearly identical to that in Virginia's proposed bill of rights. James Madison and the First Congress relied on these ratifying convention proposals in developing the U.S. Bill of Rights. [See The Founders' View of the Right to Bear Arms, pp.82-83, 131-136, 139-153]
George Mason's original 1788 Second Amendment predecessor stated:
"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]
Here is the actual wording of the 1780 Massachusetts Declaration of Rights arms provision:
"XVII. The people have a right to keep and to bear arms for the common defence." [OSA p.773]
Mason's proposal used an exact quote from the Massachusetts 1780 Declaration of Rights arms provision added to an exact quote of the Virginia Declaration of Rights arms provision. This is the American origin of the two-clause Second Amendment predecessor in 1788. It is also the direct link between the Second Amendment and the Massachusetts 1780 Declaration of Rights "keep" arms provision that the historians misquoted and only identified as a 1780 Massachusetts Constitution provision, as noted in Part 1.
It is most curious how uninterested these 21 historians are concerning language in the 1780 Massachusetts Declaration of Rights that is so directly connected to development of the Second Amendment. They relate the Massachusetts language only to a Massachusetts law, and it is so unimportant to them that they manage to misquote it in both provisions. This is just further proof that the historians' McDonald brief avoids essential American sources to divert attention to much less relevant English sources that cannot enlighten concerning subsequent American constitutionalism.
In Part 3, the historical links between this Massachusetts Declaration of Rights "keep" arms provision and the seizure of colonists' arms by the British in Massachusetts will be examined.
[Updated]
The historians' brief claims that:
"Historical records show that the Second Amendment was unrelated to any seizure of colonists’ arms by British troops." [36]
American historical records directly contradict this claim, instead indicating that the Second Amendment was clearly related to seizure of Americans' privately owned arms by the British in Massachusetts. As noted in Part 1, the essential information missing from the historians' McDonald brief relates to development of the eight state bills of rights, each of which included an American progenitor of the Second Amendment. Examination of these provisions and their relationship to development of the Second Amendment is the key to unlocking the American constitutional history avoided and missing in the historians' brief.
The state bills of rights provided no protection against violation of individual rights under laws passed by the new federal government proposed by the 1787 Federal Convention. The new Constitution provided that federal laws were paramount to state constitutions. Thus, George Mason sought a bill of rights based on the protections of the state bills of rights near the end of the convention, but a committee to form one was rejected by an overwhelming Federalist majority. As a result, Mason refused to sign the Constitution and became a major ratification era opponent seeking a bill of rights based upon the state power limiting bills of rights provisions.
In 1788, while chairman of an Antifederalist amendments committee in the Virginia Ratifying Convention, Mason wrote a model bill of rights for the proposed U.S. Constitution. This was based directly on the 1776 Virginia Declaration of Rights, of which Mason was the author, with added language taken from other state bills of rights. His 1788 model was adopted almost verbatim by Virginia, and Virginia's proposal was adopted by North Carolina. Mason also sent his model bill of rights to Antifederalist leaders in New York. As a result, New York's ratification declaration of rights included a Second Amendment provision nearly identical to that in Virginia's proposed bill of rights. James Madison and the First Congress relied on these ratifying convention proposals in developing the U.S. Bill of Rights. [See The Founders' View of the Right to Bear Arms, pp.82-83, 131-136, 139-153]
George Mason's original 1788 Second Amendment predecessor stated:
"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]
Here is the actual wording of the 1780 Massachusetts Declaration of Rights arms provision:
"XVII. The people have a right to keep and to bear arms for the common defence." [OSA p.773]
Mason's proposal used an exact quote from the Massachusetts 1780 Declaration of Rights arms provision added to an exact quote of the Virginia Declaration of Rights arms provision. This is the American origin of the two-clause Second Amendment predecessor in 1788. It is also the direct link between the Second Amendment and the Massachusetts 1780 Declaration of Rights "keep" arms provision that the historians misquoted and only identified as a 1780 Massachusetts Constitution provision, as noted in Part 1.
It is most curious how uninterested these 21 historians are concerning language in the 1780 Massachusetts Declaration of Rights that is so directly connected to development of the Second Amendment. They relate the Massachusetts language only to a Massachusetts law, and it is so unimportant to them that they manage to misquote it in both provisions. This is just further proof that the historians' McDonald brief avoids essential American sources to divert attention to much less relevant English sources that cannot enlighten concerning subsequent American constitutionalism.
In Part 3, the historical links between this Massachusetts Declaration of Rights "keep" arms provision and the seizure of colonists' arms by the British in Massachusetts will be examined.
Sunday, January 17, 2010
Historians Try to Sell Brooklyn London Bridge to U.S. Supreme Court - Part 1
Errors, Contradictions, Misquotes, and Omissions in the Professional Historians' McDonald Amicus Brief
[Updated January 20 & 24, 2010]
[This series will address historical problems in the English/Early American historians' McDonald amicus brief filed with the U.S. Supreme Court in support of Chicago's gun control laws. Six of the twenty-one historians involved in this brief were also involved in the historians' 2008 brief supporting Washington DC in the Heller case. For those unfamiliar with this blog, there is a 24 part series starting on January 25, 2009, entitled Root Causes of Never-Ending Second Amendment Dispute (below) addressing and documenting the astonishing number of errors that appeared in that earlier historians' Heller brief. Six of those same historians are back now offering the Court another dose of factually incorrect statements and off-track American history.]
There are major historical problems with the brief supporting Chicago filed by the English/Early American historians in the McDonald Second Amendment incorporation case now before the U.S. Supreme Court. Most of the brief relates to English history and development of the 1689 English Bill of Rights arms provision. The second major part deals with arguments based on Blackstone's Commentaries on the Laws of England, which was published in the late 1760's prior to the American Revolution. Neither of these older historical sources can inform regarding Americans' subsequent establishment of written constitutions with power limiting bills of rights, things unknown in British law and not even mentioned in Blackstone. A following section of the brief attempts to link American revolutionary era statements about self-preservation and defense to Blackstone's description of the English arms provision. The final part of the brief contains numerous errors, contradictions, and omissions of relevant information in its attempts to link the Second Amendment's purpose to the concept protected in the English Bill of Rights and its language to that found in British militia laws. Largely diversionary in nature, the historians focus attention on earlier and largely unrelated historical information while diverting entirely away from American historical development of government limiting bills of rights, which are directly related to the Second Amendment's language and intent.
The arms provision found in the 1689 English Bill of Rights stated:
That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law. [OSA, p.783]
The 1789 proposed Article IV amendment adopted as the Second Amendment to the U.S. Constitution in 1791:
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. [OSA, p. 744]
The historians' brief makes this assertion regarding the purpose of these provisions on page 35:
"The only difference between the English "have arms" provision and the Second Amendment is that the Second Amendment right is not dependent on privileges of wealth or birth."
This assertion is not only factually incorrect, it is entirely inane. There are only four words common to both provisions (to, the, and, arms), and only one of them is a noun. The English provision does not mention any right whatsoever, a difference. Also, the Second Amendment right is not dependent on religion, another difference. Americans are not subjects of a monarch, an additional difference. And the very reason why the American right is protected in the Constitution as part of the supreme law of the land is so it is not dependent upon laws allowing for its exercise, a most important difference. A number of other points could be listed here, but let it be remembered that this entire brief diverts away from the relevant American bill of rights related history that the Court should be examining. In the prior Heller case, the Court did not examine this most relevant American history, which is found in a source cited a number of times in Heller briefs, and as a result, the decision did not correct the major historical error in Justice Stevens' dissent, an error provided to the Court by six of the historians involved in this McDonald brief.
The historians' McDonald brief inaccurately refers to the English provision as the "right" to have arms many times, significantly more than use of accurate terms such as "allowance" or "provision." This indicates that these historians do not understand the basic difference between the English and American bills of rights. James Madison indicated that comparisons of the English and American bills of rights (exactly what the historians engage in here regarding one provision) were "inapplicable" because their purposes were so different. This was the main point of Madison's discussion about the English Bill of Rights during his 1789 speech to Congress introducing the Bill of Rights amendments. In explaining why "there is too great a difference in the case to warrant the comparison", Madison stated:
"In the declaration of rights which that country [Great Britain] has established, the truth is they have gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite. . . .But although the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many States have thought it necessary to raise barriers against power in all forms and departments of Government," [OSA, p.656, 657]
Thus, contrary to the historians' McDonald brief assertion that the only difference involved was class or condition, virtually every aspect of the arms statements in the English and U.S. Bills of Rights is different other than the noun "arms" itself. That difference was well understood and emphasized in 1789 by Madison, who not only was the direct author of the Second Amendment's power limiting restrictive clause language, but was involved in preparing and authorizing the very first American state bill of rights, that of Virginia in 1776. Madison's statements regarding these matters are definitive because he was involved in the very genesis of American bills of rights at both the state and federal levels.
Continuing with errors in the historians' McDonald brief, on page 38 they assert the following in reference to the revolutionary period:
"the phrases "bear arms" and "keep arms" are found only in state militia laws of the era."
However, in the previous sentence of the brief they present a period document directly contradicting this claim. There, they quote the Massachusetts Declaration of Rights in a statement about:
"Discussing the 1780 Massachusetts Constitution provision protecting the "right of the people to keep and bear arms for the common defence".
First, note that the historians fail to specify their quote is from the Massachusetts Declaration of Rights. That Declaration of Rights most assuredly protected the people's right to "bear arms", but it was also most assuredly not a state militia law. Three other state bills of rights protected the right to "bear arms" as well (Pennsylvania, North Carolina, and Vermont), but none of those provisions were state militia laws either. Thus, the brief's statement about "bear arms" only being found in state militia laws of the era is another factually incorrect assertion by the historians. A number of state bill of rights provisions contained that language, and the American history entirely ignored by these historians directly links those very arms related provisions to later predecessors of the Second Amendment. In short, this brief omits the most relevant historical information for understanding the Second Amendment's purpose.
Also note that the historians' brief misquotes the Massachusetts Bill of Rights provision, which actually stated:
"XVII. The people have a right to keep and to bear arms for the common defence." [OSA p.773]
The historians garbled together the wording of the Second Amendment and that of the 1780 Massachusetts Bill of Rights provision in their quotation of the latter. But wait, there's more. That is not the only misquote within this sentence. The historians go on after "common defence" discussing use of related language in a state law as follows:
"the Massachusetts legislature stated that the right to "keep and bear arms," was a right necessary for the safety of the state".
Actually, the legislature used only "bear arms" in this preamble to a bill relating to tumults and insurrections. The preamble stated:
"Whereas in a free government, where the people have a right to bear arms for the common defence, and the military power is held in subordination to the civil authority, it is necessary for the safety of the State that the virtuous citizens thereof should hold themselves in readiness, and when called upon, should exert their efforts to support the civil government, and oppose the attempts of the factious and wicked men who may wish to subvert the laws and Constitution of their country". [Source: go to page 366]
Not only do the historians replace "bear arms" with "keep and bear arms" in this misquote, they also attribute the safety of the state directly to the right to bear arms for the common defense, when in fact, the document they quote attributes it to the citizens who should exert their efforts to support the civil government when called upon.
Thus, just on page 38 of the English/Early American historians' McDonald amicus brief alone there are at least two misquotes of period sources, one misattribution, and two factually incorrect statements, with the last of the latter providing direct evidence of significant omission of relevant period sources. The "bear arms" language that the historians assert was only found in period militia laws was in fact found in a state bill of rights arms provision they quote, and it is also found in a number of other period American bill of rights arms related provisions. The historians are clearly ignoring state bill of rights provisions that are much more relevant for understanding the Second Amendment's purpose while instead advancing pre-revolutionary English sources that are largely irrelevant. The alternative to their ignoring this relevant information is they haven't got a clue to begin with, an unlikely prospect. These facts, errors, and omissions indicate that the historians are not reliable sources of information for the Court's fresh examination of the "origins of the Second Amendment" that the brief advises "to properly decide the question presented" in McDonald. [p.6]
Friday, January 1, 2010
Historical Points in Chicago's McDonald Brief
Chicago extensively re-argued Heller in its prior McDonald brief opposing Cert. Its new brief has a short historical section where Heller is also re-argued. The thrust of this new argument is that the right of the people to keep and bear arms was only added to the Bill of Rights because of a perceived necessity of protecting the militia. [p.34] This is just another attempt to make the restrictive clause dependent upon the militia clause.
Historically this argument is clearly unfounded. Every provision of the first eight amendments was developed from the existing state bills of rights. Both clauses of the Second Amendment come from that source via the Virginia Ratifying Convention's proposed Bill of Rights.
In Virginia's 1788 proposal, the two-clause Second Amendment predecessor consists of an exact quote of Virginia's 1776 well regulated militia provision [OSA, p.748] preceded by an almost exact quote of Massachusetts' "the people have a right to keep and to bear arms" language. [OSA, p.773] These state bill of rights provisions were understood as limiting the state government and protecting a defensively effective armed population, a concept that is dependent on the fundamental right of individuals to possess and use arms.
All fundamental rights protections taken from the state bills of rights and eventually added to the U.S. Bill of Rights were intended to protect individual rights. Demands for such action igniting the Bill of Rights dispute that raged throughout ratification. The argument that sparked this dispute in the Federal Convention from George Mason, author of Virginia's 1776 bill of rights, was that the new government had authority paramount to state constitutions. State declarations of rights would not protect individual rights against the new government because these rights protecting declarations were part of the state constitutions. A Federal bill of rights was needed as part of the new U.S. Constitution to assure their continued protection against violation by the new government.
As a result of the Federal Convention's refusal to add a bill of rights to the Constitution, Mason notoriously refused to sign the document of which he was a major architect. He even stated in a public speech that he would rather cut off his hand than sign the Constitution, which he described as destructive of the people's rights. The end result was Mason eventually forming what became the model for the U.S. Bill of Rights in Virginia's 1788 Ratifying Convention.
Mason based his proposed 1788 model on his own 1776 Virginia production, and he added provisions from the bills of rights of other states. As an example, Virginia had not protected freedom of speech, which Mason added from Pennsylvania's bill of rights. He also duplicated protections stated in different language. For example, he added Pennsylvania's right of writing and publishing to Virginia's existing freedom of the press language. And he added "the people have a right to keep and to bear arms" from Massachusetts' bill of rights to Virginia's existing Article 13: "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.390] This is the origin of the two-clause Second Amendment predecessor, both clauses of which were equal declarations relating to the same fundamental, unalienable rights.
Mason also indicated in the 1788 Virginia Convention, in a bill of rights argument initiated by the reading of articles 8 through 13 of Virginia's bill of rights, that these rights were limits upon legislative authority. [OSA, p.436] If the author of the Second Amendment's predecessor language understood well regulated militia bill of rights language as a limit on state and federal authority, why would anyone want to accept historically unfounded gun control advocate claims to the contrary?
An understanding of Bill of Rights related developmental history makes clear that the gun control advocate view twists this language around from protecting the people against abuse of state and federal authority regarding arms possession and use to authorizing both state and federal abuse of power regarding arms possession and use. Their argument is that government has complete control over all matters relating to anything relating to the term "militia." The problem with their view is that it does not use militia as understood during the ratification period nor does it place the Second Amendment in its proper government limiting Bill of Rights context.
Historically this argument is clearly unfounded. Every provision of the first eight amendments was developed from the existing state bills of rights. Both clauses of the Second Amendment come from that source via the Virginia Ratifying Convention's proposed Bill of Rights.
In Virginia's 1788 proposal, the two-clause Second Amendment predecessor consists of an exact quote of Virginia's 1776 well regulated militia provision [OSA, p.748] preceded by an almost exact quote of Massachusetts' "the people have a right to keep and to bear arms" language. [OSA, p.773] These state bill of rights provisions were understood as limiting the state government and protecting a defensively effective armed population, a concept that is dependent on the fundamental right of individuals to possess and use arms.
All fundamental rights protections taken from the state bills of rights and eventually added to the U.S. Bill of Rights were intended to protect individual rights. Demands for such action igniting the Bill of Rights dispute that raged throughout ratification. The argument that sparked this dispute in the Federal Convention from George Mason, author of Virginia's 1776 bill of rights, was that the new government had authority paramount to state constitutions. State declarations of rights would not protect individual rights against the new government because these rights protecting declarations were part of the state constitutions. A Federal bill of rights was needed as part of the new U.S. Constitution to assure their continued protection against violation by the new government.
As a result of the Federal Convention's refusal to add a bill of rights to the Constitution, Mason notoriously refused to sign the document of which he was a major architect. He even stated in a public speech that he would rather cut off his hand than sign the Constitution, which he described as destructive of the people's rights. The end result was Mason eventually forming what became the model for the U.S. Bill of Rights in Virginia's 1788 Ratifying Convention.
Mason based his proposed 1788 model on his own 1776 Virginia production, and he added provisions from the bills of rights of other states. As an example, Virginia had not protected freedom of speech, which Mason added from Pennsylvania's bill of rights. He also duplicated protections stated in different language. For example, he added Pennsylvania's right of writing and publishing to Virginia's existing freedom of the press language. And he added "the people have a right to keep and to bear arms" from Massachusetts' bill of rights to Virginia's existing Article 13: "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.390] This is the origin of the two-clause Second Amendment predecessor, both clauses of which were equal declarations relating to the same fundamental, unalienable rights.
Mason also indicated in the 1788 Virginia Convention, in a bill of rights argument initiated by the reading of articles 8 through 13 of Virginia's bill of rights, that these rights were limits upon legislative authority. [OSA, p.436] If the author of the Second Amendment's predecessor language understood well regulated militia bill of rights language as a limit on state and federal authority, why would anyone want to accept historically unfounded gun control advocate claims to the contrary?
An understanding of Bill of Rights related developmental history makes clear that the gun control advocate view twists this language around from protecting the people against abuse of state and federal authority regarding arms possession and use to authorizing both state and federal abuse of power regarding arms possession and use. Their argument is that government has complete control over all matters relating to anything relating to the term "militia." The problem with their view is that it does not use militia as understood during the ratification period nor does it place the Second Amendment in its proper government limiting Bill of Rights context.
Wednesday, December 16, 2009
Bill of Rights Day Observance Second Amendment Book Sale Notice and Thank You
Note that the Bill of Rights Day Observance Second Amendment book sale is an ongoing event, which has been extended until the end of the month. It was originally planned on short notice as a ten day sale. Due to misunderstanding that it was only a one day event, I decided to extend it for another ten days until December 31st.
Further information about the book sale is located in the updated post below for December 9th.
Also, I would like to thank Cam Edwards for mentioning the Bill of Rights Day observance book sale event on his NRA news program, Cam & Company, on Tuesday (12/15/09).
Additionally, I would like to thank any other bloggers who may have mentioned the sale and who have not been specifically noted here.
Further information about the book sale is located in the updated post below for December 9th.
Also, I would like to thank Cam Edwards for mentioning the Bill of Rights Day observance book sale event on his NRA news program, Cam & Company, on Tuesday (12/15/09).
Additionally, I would like to thank any other bloggers who may have mentioned the sale and who have not been specifically noted here.
Tuesday, December 15, 2009
A Thoughful Bill of Rights Day to Everyone
Updated December 16, 2009
On this 218th ratification anniversary of the U.S. Bill of Rights, the first ten amendments to our Constitution, here are some thoughts on the novel development in America of limits upon government authority, especially legislative authority.
The English Bill of Rights had already established the concept of limits upon executive authority, but not upon the legislative branch specifically or the government as a whole. It took the American Revolution to bring about declarations of rights with the intent of restrictions on legislative supremacy and the government in general. The people in seven of the original 13 states plus Vermont developed declarations of rights to their state constitutions during the contest with Great Britain. These declarations contained lists of the republican principles and unalienable, fundamental rights that our forefathers understood their new free governments to be founded upon, without which they could not long exist, and to which they were expected to conform.
After defending their newly established state governments united under the defensively oriented Articles of Confederation, a new Constitution was formed in the summer of 1787 by the Federal Convention in Philadelphia. Americans should ever be grateful that the vast majority of those present at the convention rejected George Mason's suggestion for a committee to draw up a bill of rights. Such a bill of rights would have been developed behind closed doors without extensive public discussion of its purpose and meaning. Such an action would have resulted in every aspect of every protection it contained being subject to never-ending dispute as to whether or not it was intended to limit legislative authority and to what extent.
As a result of that refusal, a major political dispute erupted during ratification over the need for a bill of rights as part of the proposed U.S. Constitution. Extensive arguments concerning that subject and the sources and purposes for such a bill of rights appeared in the newspapers, pamphlets, broadsides, and private correspondence of the period. This public dispute divided the country, producing Federalist opponents and Antifederalist proponents for a list of fundamental, inalienable rights to be constitutionally protected as part of the new form of government. The bill of rights dispute was divisive and intense, almost resulting in defeat of the proffered form of government. Early on, Federalists summarily rejected bill of rights proposals in Pennsylvania, Massachusetts, and Maryland, states where the argument was raised and they were in the majority.
In later conventions the Antifederalists prevailed in their arguments for bill of rights protections as proposed amendments to the Constitution. The acceptance of such proposals to guarantee each citizen's right to keep arms, freedom of religion, and prevent all peacetime quartering of soldiers without owner's consent in New Hampshire's convention brought about acceptance by the ninth state and a certainty that the Constitution would be carried into effect. However, this fact was unknown in the Virginia Ratifying Convention. There, in order to assure ratification by at least nine states, the Federalists, led by James Madison, agreed to pass a bill of rights and extensive list of other proposed amendments on to Congress for its consideration in order to achieve ratification. Madison promised to subsequently support the bill of rights proposals he understood as relating to individual rights, including the right of the people to keep and bear arms, and he carried out that promise after being elected to the House of Representatives in 1789.
While the intent and extent of bill of rights provisions, especially the Second Amendment, are often called into question in spite of the open public debate about the bill of rights during ratification, at least there is extensive documentation of the arguments and actions that led to development and adoption of the bill of rights provisions. It is most unfortunate that those who engage in modern discussion concerning such provisions are often completely unfamiliar with the period sources.
If the past is any guide to the future, that Americans will freely enjoy the rights protected by the U.S. Bill of Rights is seriously in doubt unless they remain eternally vigilant. In the case of the Second Amendment, the right to keep and bear arms has not only been violated and ignored, but its purpose actually denied by those interested more in control than liberty. There is little doubt that almost every provision of the Bill of Rights (with the possible exception of the Third Amendment) has either been openly violated or the intent evaded by subterfuge at one time or another.
The refuge for expectation that Americans will enjoy in the future those rights that their ancestors bled and died to pass on to them, protected in a Bill of Rights as part of the supreme law of the land, is a clear understanding of those rights, the resolve to insist that they be observed in every instance, and the ability to defend them in the last resort if all three branches of government basely neglect their primary duty as stated in the oath of office - to uphold the Constitution.
On this 218th ratification anniversary of the U.S. Bill of Rights, the first ten amendments to our Constitution, here are some thoughts on the novel development in America of limits upon government authority, especially legislative authority.
The English Bill of Rights had already established the concept of limits upon executive authority, but not upon the legislative branch specifically or the government as a whole. It took the American Revolution to bring about declarations of rights with the intent of restrictions on legislative supremacy and the government in general. The people in seven of the original 13 states plus Vermont developed declarations of rights to their state constitutions during the contest with Great Britain. These declarations contained lists of the republican principles and unalienable, fundamental rights that our forefathers understood their new free governments to be founded upon, without which they could not long exist, and to which they were expected to conform.
After defending their newly established state governments united under the defensively oriented Articles of Confederation, a new Constitution was formed in the summer of 1787 by the Federal Convention in Philadelphia. Americans should ever be grateful that the vast majority of those present at the convention rejected George Mason's suggestion for a committee to draw up a bill of rights. Such a bill of rights would have been developed behind closed doors without extensive public discussion of its purpose and meaning. Such an action would have resulted in every aspect of every protection it contained being subject to never-ending dispute as to whether or not it was intended to limit legislative authority and to what extent.
As a result of that refusal, a major political dispute erupted during ratification over the need for a bill of rights as part of the proposed U.S. Constitution. Extensive arguments concerning that subject and the sources and purposes for such a bill of rights appeared in the newspapers, pamphlets, broadsides, and private correspondence of the period. This public dispute divided the country, producing Federalist opponents and Antifederalist proponents for a list of fundamental, inalienable rights to be constitutionally protected as part of the new form of government. The bill of rights dispute was divisive and intense, almost resulting in defeat of the proffered form of government. Early on, Federalists summarily rejected bill of rights proposals in Pennsylvania, Massachusetts, and Maryland, states where the argument was raised and they were in the majority.
In later conventions the Antifederalists prevailed in their arguments for bill of rights protections as proposed amendments to the Constitution. The acceptance of such proposals to guarantee each citizen's right to keep arms, freedom of religion, and prevent all peacetime quartering of soldiers without owner's consent in New Hampshire's convention brought about acceptance by the ninth state and a certainty that the Constitution would be carried into effect. However, this fact was unknown in the Virginia Ratifying Convention. There, in order to assure ratification by at least nine states, the Federalists, led by James Madison, agreed to pass a bill of rights and extensive list of other proposed amendments on to Congress for its consideration in order to achieve ratification. Madison promised to subsequently support the bill of rights proposals he understood as relating to individual rights, including the right of the people to keep and bear arms, and he carried out that promise after being elected to the House of Representatives in 1789.
While the intent and extent of bill of rights provisions, especially the Second Amendment, are often called into question in spite of the open public debate about the bill of rights during ratification, at least there is extensive documentation of the arguments and actions that led to development and adoption of the bill of rights provisions. It is most unfortunate that those who engage in modern discussion concerning such provisions are often completely unfamiliar with the period sources.
If the past is any guide to the future, that Americans will freely enjoy the rights protected by the U.S. Bill of Rights is seriously in doubt unless they remain eternally vigilant. In the case of the Second Amendment, the right to keep and bear arms has not only been violated and ignored, but its purpose actually denied by those interested more in control than liberty. There is little doubt that almost every provision of the Bill of Rights (with the possible exception of the Third Amendment) has either been openly violated or the intent evaded by subterfuge at one time or another.
The refuge for expectation that Americans will enjoy in the future those rights that their ancestors bled and died to pass on to them, protected in a Bill of Rights as part of the supreme law of the land, is a clear understanding of those rights, the resolve to insist that they be observed in every instance, and the ability to defend them in the last resort if all three branches of government basely neglect their primary duty as stated in the oath of office - to uphold the Constitution.
Monday, December 14, 2009
More Thank You updates
A further Thank You to both Say Uncle and Target Rich Environment for mentioning and linking to the Bill of Rights Day observation sale of my Second Amendment books as posted below.
Due to the title of my Bill of Rights Day announcement, there is some confusion that the observation event is limited to sales on December 15th, the 218th ratification anniversary for the U.S. Bill of Rights. In fact, this is an ongoing event for a limited time. Due to this confusion, the sale is going to be continued through this month until December 31, 2009.
Due to the title of my Bill of Rights Day announcement, there is some confusion that the observation event is limited to sales on December 15th, the 218th ratification anniversary for the U.S. Bill of Rights. In fact, this is an ongoing event for a limited time. Due to this confusion, the sale is going to be continued through this month until December 31, 2009.
Saturday, December 12, 2009
Thank You Updates
More pro-rights activists have mentioned and linked to On Second Opinion's announcement for the Bill of Rights Day observance sale of my Second Amendment books, which is posted below.
Long time Second Amendment activist and legal scholar, David Hardy, posted a notice concerning it at his Arms and the Law site. David is also the producer of the documentary film, In Search of The Second Amendment.
Mark Vanderberg, pro-rights activist and podcaster, posted a Gunrights tweet on twitter (something new to me) to link to the On Second Opinion Blog announcement. Note that Mark recorded a pre-Heller podcast interview of me concerning The Founders' View of the Right to Bear Arms prior to publication and also posted a synopsis of the book, both of which can be found right here.
Thank you to both David and Mark for helping to get the word out on the Bill of Rights Day observance Second Amendment book sale.
Long time Second Amendment activist and legal scholar, David Hardy, posted a notice concerning it at his Arms and the Law site. David is also the producer of the documentary film, In Search of The Second Amendment.
Mark Vanderberg, pro-rights activist and podcaster, posted a Gunrights tweet on twitter (something new to me) to link to the On Second Opinion Blog announcement. Note that Mark recorded a pre-Heller podcast interview of me concerning The Founders' View of the Right to Bear Arms prior to publication and also posted a synopsis of the book, both of which can be found right here.
Thank you to both David and Mark for helping to get the word out on the Bill of Rights Day observance Second Amendment book sale.
Friday, December 11, 2009
Thank You
A Thank You to both David Codrea and Thirdpower for mentioning and linking to On Second Opinion's announcement for the Bill of Rights Day observance sale of my Second Amendment books.
Thirdpower posted the notice at Days of Our Trailers.
David Codrea included the notice along with his Gun Rights Examiner announcement for his Feb. 2010 Guns Magazine review of Robert Churchill's book.
Thirdpower posted the notice at Days of Our Trailers.
David Codrea included the notice along with his Gun Rights Examiner announcement for his Feb. 2010 Guns Magazine review of Robert Churchill's book.
Wednesday, December 9, 2009
Bill of Rights Day Book Sale
Updated December 14, 2009
GOLDEN OAK BOOKS ANNOUNCEMENT:
BILL OF RIGHTS DAY SALE ON SECOND AMENDMENT SCHOLARSHIP FROM DAVID E. YOUNG
In celebration of the 218th anniversary of the U.S. Bill of Rights on December 15th 2009, Golden Oak Books announces a limited time half price sale on the historical books from Second Amendment scholar David E. Young. Paperback copies of The Origin of the Second Amendment and hardbound copies of The Founders' View of the Right to Bear Arms will be $15.00 each for a 21 day period from December 10th through the 31st, 2009. These sale prices will only be available through Amazon.com at the links for Golden Oak Books provided below. Bill of Rights and Second Amendment historical aficionados will be able to obtain either of Mr. Young's influential books for half of the normal $30.00 list price, or get both for the price of one. Anyone interested in reasonably priced Christmas gifts can give books that will be useful for a lifetime. Check out your local public library because it might be in immediate need of a fact filled book donation to balance out an overabundance of gun control advocate historical tripe.
BOOK INFORMATION
The Origin of the Second Amendment
$15.00 for a limited time
The only complete period document collection, The Origin of the Second Amendment places the Second Amendment into proper context of the demands for the Federal Bill of Rights during ratification of the U.S. Constitution. In addition to bill of rights demands, relevant subjects include discussions about the militia, claims and counter-claims regarding the people being armed in the future, and every reference to the limited powers of the new Federal Government. The Origin of the Second Amendment includes literal transcripts of the amendments proposed in state ratifying conventions, as well as relevant selections from convention debates, newspaper articles, pamphlets, broadsides, and private letters. Complete source citations are provided for each historical document. Three appendices contain copies of the eight existing period state declarations of rights and similar provisions in the other state constitutions, a comparison chart for provisions of the state declarations of rights/ratifying convention bills of rights/U.S. Bill of Rights, and an analysis of support for the U.S. Constitution and the Bill of Rights based on ratifying convention votes.
The Origin of the Second Amendment was cited 38 times in the District of Columbia vs Heller case with 6 citations in Justice Scalia's Supreme Court decision. It was also cited well over 100 times in the U.S. vs Emerson decision from the Fifth Circuit Court of Appeals. These numerous citations make The Origin of the Second Amendment the most cited historical source collection on the subject in the Federal Courts.
Origin contains 800 pages of documents (890 pages total 6"X9"), is indexed, printed on acid free paper, paper bound, and includes an introduction intended for those entirely unfamiliar with ratification era history.
The Founders' View of the Right to Bear Arms
$15.00 for a limited time
Mr. Young's latest book is a definitive history of the Second Amendment providing the most complete and straightforward explanation of its development ever published. The terms and phrases of the amendment are traced from their origin in AMERICA to their inclusion in the U.S. Bill of Rights. Subjects covered in The Founders' View include the widespread ownership and use of arms by Americans in colonial times, the American understanding of militia and well regulated militia, colonial defensive associations, development of Revolutionary Era state bills of rights intended to limit legislative authority, the persons most responsible for such development, Mason Triads, arms related Federalist and Antifederalist Mantras, a detailed analysis of the ratification era bill of rights dispute and proposals, and other closely related matters. Two appendices contain Secretary of State Thomas Jefferson's Official Imprint of the ratified amendments as proposed by Congress and Mr. Young's synopsis of essential facts drawn from numerous American colonial militia laws.
The Founders' View of the Right to Bear Arms was cited extensively in the Heller case in briefs from Gun Owners of America, Academics for the Second Amendment, and Alan Gura's brief for Mr. Heller.
The Founders' View contains 288 pages (6"X9"), is indexed, printed on acid free paper, has a sewn hardcover binding, is fully documented, and relies primarily on The Origin of the Second Amendment for ratification era citation of facts.
BILL OF RIGHTS DAY SALE ORDERING AT AMAZON.COM
The proper sale price will be available only through Golden Oak Books, the publisher of Mr. Young's historical research. The following Amazon.com links connect directly to ordering pages for the respective books:
The Origin of the Second Amendment
The Founders' View of the Right to Bear Arms
For a picture of the author holding citation tagged copies of both books at the NRA's event honoring those involved in the Heller victory, see Sebastian's Thank You post (pictures are clickable to enlarge).
GOLDEN OAK BOOKS ANNOUNCEMENT:
BILL OF RIGHTS DAY SALE ON SECOND AMENDMENT SCHOLARSHIP FROM DAVID E. YOUNG
In celebration of the 218th anniversary of the U.S. Bill of Rights on December 15th 2009, Golden Oak Books announces a limited time half price sale on the historical books from Second Amendment scholar David E. Young. Paperback copies of The Origin of the Second Amendment and hardbound copies of The Founders' View of the Right to Bear Arms will be $15.00 each for a 21 day period from December 10th through the 31st, 2009. These sale prices will only be available through Amazon.com at the links for Golden Oak Books provided below. Bill of Rights and Second Amendment historical aficionados will be able to obtain either of Mr. Young's influential books for half of the normal $30.00 list price, or get both for the price of one. Anyone interested in reasonably priced Christmas gifts can give books that will be useful for a lifetime. Check out your local public library because it might be in immediate need of a fact filled book donation to balance out an overabundance of gun control advocate historical tripe.
BOOK INFORMATION
The Origin of the Second Amendment
$15.00 for a limited time
The only complete period document collection, The Origin of the Second Amendment places the Second Amendment into proper context of the demands for the Federal Bill of Rights during ratification of the U.S. Constitution. In addition to bill of rights demands, relevant subjects include discussions about the militia, claims and counter-claims regarding the people being armed in the future, and every reference to the limited powers of the new Federal Government. The Origin of the Second Amendment includes literal transcripts of the amendments proposed in state ratifying conventions, as well as relevant selections from convention debates, newspaper articles, pamphlets, broadsides, and private letters. Complete source citations are provided for each historical document. Three appendices contain copies of the eight existing period state declarations of rights and similar provisions in the other state constitutions, a comparison chart for provisions of the state declarations of rights/ratifying convention bills of rights/U.S. Bill of Rights, and an analysis of support for the U.S. Constitution and the Bill of Rights based on ratifying convention votes.
The Origin of the Second Amendment was cited 38 times in the District of Columbia vs Heller case with 6 citations in Justice Scalia's Supreme Court decision. It was also cited well over 100 times in the U.S. vs Emerson decision from the Fifth Circuit Court of Appeals. These numerous citations make The Origin of the Second Amendment the most cited historical source collection on the subject in the Federal Courts.
Origin contains 800 pages of documents (890 pages total 6"X9"), is indexed, printed on acid free paper, paper bound, and includes an introduction intended for those entirely unfamiliar with ratification era history.
The Founders' View of the Right to Bear Arms
$15.00 for a limited time
Mr. Young's latest book is a definitive history of the Second Amendment providing the most complete and straightforward explanation of its development ever published. The terms and phrases of the amendment are traced from their origin in AMERICA to their inclusion in the U.S. Bill of Rights. Subjects covered in The Founders' View include the widespread ownership and use of arms by Americans in colonial times, the American understanding of militia and well regulated militia, colonial defensive associations, development of Revolutionary Era state bills of rights intended to limit legislative authority, the persons most responsible for such development, Mason Triads, arms related Federalist and Antifederalist Mantras, a detailed analysis of the ratification era bill of rights dispute and proposals, and other closely related matters. Two appendices contain Secretary of State Thomas Jefferson's Official Imprint of the ratified amendments as proposed by Congress and Mr. Young's synopsis of essential facts drawn from numerous American colonial militia laws.
The Founders' View of the Right to Bear Arms was cited extensively in the Heller case in briefs from Gun Owners of America, Academics for the Second Amendment, and Alan Gura's brief for Mr. Heller.
The Founders' View contains 288 pages (6"X9"), is indexed, printed on acid free paper, has a sewn hardcover binding, is fully documented, and relies primarily on The Origin of the Second Amendment for ratification era citation of facts.
BILL OF RIGHTS DAY SALE ORDERING AT AMAZON.COM
The proper sale price will be available only through Golden Oak Books, the publisher of Mr. Young's historical research. The following Amazon.com links connect directly to ordering pages for the respective books:
The Origin of the Second Amendment
The Founders' View of the Right to Bear Arms
For a picture of the author holding citation tagged copies of both books at the NRA's event honoring those involved in the Heller victory, see Sebastian's Thank You post (pictures are clickable to enlarge).
Wednesday, November 25, 2009
2nd Amendment Center at Ohio State University is Gone
Updated Nov. 29, 2009
Over at The Volokh Conspiracy, Professor Randy Barnett posts that the Joyce Foundation funded Second Amendment Research Center at Ohio State University has folded. A big Aloha to OSU's 2nd Amendment Center, one of the Joyce Foundation's attempt's to buy historical creds for the proposition that the Second Amendment and gun control are mutually exclusive.
Amusing anecdote: The center's director, Saul Cornell, apparently selected the term "gun" to be used as a keyword in searching for period documents to be placed in the Center's digital archive. This was a poor choice in trying to locate documents related to the Second Amendment since it does not contain that term. One of the most intersting things about the center's digital archive of "relevant" documents was that it consisted mostly of state militia laws. Not one of the Second Amendment's state or ratifying convention bill of rights progenitors nor any period discussions concerning them appeared in it.
My research indicates that in the entire forty to fifty thousand pages of existing ratification era documents relating to the U.S. Constitution the term "gun" appeared only two or perhaps three times. Not one page of those ratification era sources appeared in the OSU's Second Amendment Research Center digital archive, not even the few sources that did contain the term "gun". Due to its extremely rare usage in such period sources, the term was not even listed in the index of The Origin of the Second Amendment.
One of those rare period uses still sticks in the mind, though: "riphael-gun".
Over at The Volokh Conspiracy, Professor Randy Barnett posts that the Joyce Foundation funded Second Amendment Research Center at Ohio State University has folded. A big Aloha to OSU's 2nd Amendment Center, one of the Joyce Foundation's attempt's to buy historical creds for the proposition that the Second Amendment and gun control are mutually exclusive.
Amusing anecdote: The center's director, Saul Cornell, apparently selected the term "gun" to be used as a keyword in searching for period documents to be placed in the Center's digital archive. This was a poor choice in trying to locate documents related to the Second Amendment since it does not contain that term. One of the most intersting things about the center's digital archive of "relevant" documents was that it consisted mostly of state militia laws. Not one of the Second Amendment's state or ratifying convention bill of rights progenitors nor any period discussions concerning them appeared in it.
My research indicates that in the entire forty to fifty thousand pages of existing ratification era documents relating to the U.S. Constitution the term "gun" appeared only two or perhaps three times. Not one page of those ratification era sources appeared in the OSU's Second Amendment Research Center digital archive, not even the few sources that did contain the term "gun". Due to its extremely rare usage in such period sources, the term was not even listed in the index of The Origin of the Second Amendment.
One of those rare period uses still sticks in the mind, though: "riphael-gun".
Monday, November 2, 2009
Clayton Cramer Needs a Little Help from his Friends
Clayton Cramer, a professional programmer as well as accomplished Second Amendment historian and author, has been adversely affected by the current economy. He is out of work at the moment and looking for suitable employment.
It was Clayton who first noticed that there were major problems with the historical work of Professor Bellesiles (Emory University), who claimed that there were few firearms in America until the Civil War period. Clayton pursued this until academics became involved forcing Emory to convene a panel of experts that led to the professor's resignation amid charges of academic fraud.
If anyone might be able to help Clayton out in any way, please email him at clayton followed by the at sign followed by claytoncramer.com. (He does not like spambots obtaining his address) His software engineering resume and academic VC are located at claytoncramer.com.
It was Clayton who first noticed that there were major problems with the historical work of Professor Bellesiles (Emory University), who claimed that there were few firearms in America until the Civil War period. Clayton pursued this until academics became involved forcing Emory to convene a panel of experts that led to the professor's resignation amid charges of academic fraud.
If anyone might be able to help Clayton out in any way, please email him at clayton followed by the at sign followed by claytoncramer.com. (He does not like spambots obtaining his address) His software engineering resume and academic VC are located at claytoncramer.com.
Tuesday, September 22, 2009
On Second Opinion Update
For those who follow On Second Opinion, here is a Blog Update:
I have been taking a hiatus from blogging since June 20th in order to catch up with necessary summer work. It was unclear in advance exactly how long this situation would continue.
The plan is to start blogging again in early October. The series about the errors in the professional historians' Heller brief will be concluded then and a new shorter series on the errors in the professional linguists' Heller brief will be started.
Also, I plan to attend the Second Amendment Foundation sponsored 2009 Gun Rights Policy Conference in St. Louis on September 25, 26, and 27. I will be giving a talk about the errors in the historians' Heller brief early Saturday afternoon at the GRPC. For those interested in Second Amendment developmental history and intent, stop by my table and say hello. I hope to see you there.
Thank You.
I have been taking a hiatus from blogging since June 20th in order to catch up with necessary summer work. It was unclear in advance exactly how long this situation would continue.
The plan is to start blogging again in early October. The series about the errors in the professional historians' Heller brief will be concluded then and a new shorter series on the errors in the professional linguists' Heller brief will be started.
Also, I plan to attend the Second Amendment Foundation sponsored 2009 Gun Rights Policy Conference in St. Louis on September 25, 26, and 27. I will be giving a talk about the errors in the historians' Heller brief early Saturday afternoon at the GRPC. For those interested in Second Amendment developmental history and intent, stop by my table and say hello. I hope to see you there.
Thank You.
Saturday, June 20, 2009
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.
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.
Friday, June 19, 2009
Root Causes of Never-ending Second Amendment Dispute - Part 23
Diversionary Arguments Abound in the Historians' Heller Amicus Brief
Completely ignoring the restrictive clause of the Second Amendment protecting "the right of the people to keep and bear arms" against infringement, the historians had this to say about Madison's version taken to Congress:
Assertion #13
"Taking the Virginia and New York recommendations as his model, Madison again made the militia the urgent question to confront." [p.25]
Fact Checking of Assertion #13
On the contrary, there was no reason for Madison to deal with militia powers that were already established in the Constitution exactly as the Federalists wanted them. As examined in the previous two posts, what Madison had every reason to do was satisfy the overwhelming Antifederalist demands for adding a bill of rights to the Constitution, the protections of which they took from those already found in the existing state bills of rights. The ratifying convention related proposals for a bill of rights invariably included protection for the right to keep arms. [OSA, pp.151, 260, 446, 459, 481, 505, 735] In the model Bill of Rights developed by George Mason, author of the 1776 Virginia Declaration of Rights, he combined his own original well regulated militia clause with protection for the right to keep and bear arms. [OSA, p.459] Both Mason and Madison understood the predecessor state bill of rights provisions as limits on the state legislatures, and that these same limits were now being placed in a federal bill of rights to protect the same rights against federal abuse of power.
What both the Second Amendment and James Madison's version were intended to do was to assure that "the right of the people to keep and bear arms shall not be infringed." This Madison restrictive language is exactly the same in both provisions. [OSA, pp.654, 716] It is also the language that the historians have consistently bent over backwards to ignore and divert attention away from whenever feasible throughout their brief. Readers are assured that the militia is what "Madison again made" the "urgent question to confront" while the right of the people to keep and bear arms is completely ignored once again in the brief. Where are the period historical sources indicating that Madison considered making the militia powers an urgent question for Congress to confront in relation to his Bill of Rights proposals? There is a reason such sources have not been cited in the brief, because they do not exist. If, as the historians assert, the question Madison was pushing as an amendment to Congress was the militia and it was "urgent", why didn't Madison even mention it in his speech to that body?
The historians presented a page-long straw man argument about what the various points in Madison's notes for his amendments speech to Congress meant. Attempting to divert all attention to the militia clause, they then emphasized that Madison "did not discuss the right to bear arms" in his speech. True, but he also did not discuss freedom of speech, freedom of assembly, the right to petition, the right to counsel, protection against cruel and unusual punishments, and a very great number of other specific rights eventually protected in the U.S. Bill of Rights. Most of the rights he did "discuss," as the historians describe it, were simply mentioned, not discussed. Readers are informed that Madison wanted provisions for freedom of religion, the press, and criminal jury trials as protections against the states, also mentioned in his speech. But where is the "urgent" militia question mentioned in his speech or his notes? Apparently it is not as urgent as the historians purpose of diverting attention away from the right to keep and bear arms clause language.
All of these Madison notes and Congressional speech arguments are used by the historians to divert attention away from much more relevant and important information. In addition to guiding readers away from consideration of the restrictive right to keep and bear arms clause, these arguments divert attention away from the fact Madison stated that the American state bills of rights were intended to limit legislative power. This is a view that directly contradicts the historians' claim upon which this entire brief is founded. Madison stated in his speech to Congress that American bills of rights were intended "to raise barriers to power in all forms and departments of Government." This concept was repeated more than once and was a major point of Madison's Congressional speech introducing his Bill of Rights amendments. The historians are forced to ignore Madison's stated views in order to pursue their confused arguments that are founded on an accumulation of errors about Second Amendment intent. [See parts 1, 2, and 3 of this series for the historians' earliest erroneous statements regarding the intent of the state bills of rights, which contain the Second Amendment's predecessor language.]
Conclusion - Assertion #13 is Erroneous
The historians' assertion that the militia was what Madison considered as an "urgent question to confront" is without historical foundation and is used for entirely diversionary purposes in their brief. Madison never mentioned this "urgent" need for Congress to confront militia powers, and the period evidence clearly indicates, as shown in the previous post, that his concern was private rights in the case of all of the predecessors of the first eight amendments.
Completely ignoring the restrictive clause of the Second Amendment protecting "the right of the people to keep and bear arms" against infringement, the historians had this to say about Madison's version taken to Congress:
Assertion #13
"Taking the Virginia and New York recommendations as his model, Madison again made the militia the urgent question to confront." [p.25]
Fact Checking of Assertion #13
On the contrary, there was no reason for Madison to deal with militia powers that were already established in the Constitution exactly as the Federalists wanted them. As examined in the previous two posts, what Madison had every reason to do was satisfy the overwhelming Antifederalist demands for adding a bill of rights to the Constitution, the protections of which they took from those already found in the existing state bills of rights. The ratifying convention related proposals for a bill of rights invariably included protection for the right to keep arms. [OSA, pp.151, 260, 446, 459, 481, 505, 735] In the model Bill of Rights developed by George Mason, author of the 1776 Virginia Declaration of Rights, he combined his own original well regulated militia clause with protection for the right to keep and bear arms. [OSA, p.459] Both Mason and Madison understood the predecessor state bill of rights provisions as limits on the state legislatures, and that these same limits were now being placed in a federal bill of rights to protect the same rights against federal abuse of power.
What both the Second Amendment and James Madison's version were intended to do was to assure that "the right of the people to keep and bear arms shall not be infringed." This Madison restrictive language is exactly the same in both provisions. [OSA, pp.654, 716] It is also the language that the historians have consistently bent over backwards to ignore and divert attention away from whenever feasible throughout their brief. Readers are assured that the militia is what "Madison again made" the "urgent question to confront" while the right of the people to keep and bear arms is completely ignored once again in the brief. Where are the period historical sources indicating that Madison considered making the militia powers an urgent question for Congress to confront in relation to his Bill of Rights proposals? There is a reason such sources have not been cited in the brief, because they do not exist. If, as the historians assert, the question Madison was pushing as an amendment to Congress was the militia and it was "urgent", why didn't Madison even mention it in his speech to that body?
The historians presented a page-long straw man argument about what the various points in Madison's notes for his amendments speech to Congress meant. Attempting to divert all attention to the militia clause, they then emphasized that Madison "did not discuss the right to bear arms" in his speech. True, but he also did not discuss freedom of speech, freedom of assembly, the right to petition, the right to counsel, protection against cruel and unusual punishments, and a very great number of other specific rights eventually protected in the U.S. Bill of Rights. Most of the rights he did "discuss," as the historians describe it, were simply mentioned, not discussed. Readers are informed that Madison wanted provisions for freedom of religion, the press, and criminal jury trials as protections against the states, also mentioned in his speech. But where is the "urgent" militia question mentioned in his speech or his notes? Apparently it is not as urgent as the historians purpose of diverting attention away from the right to keep and bear arms clause language.
All of these Madison notes and Congressional speech arguments are used by the historians to divert attention away from much more relevant and important information. In addition to guiding readers away from consideration of the restrictive right to keep and bear arms clause, these arguments divert attention away from the fact Madison stated that the American state bills of rights were intended to limit legislative power. This is a view that directly contradicts the historians' claim upon which this entire brief is founded. Madison stated in his speech to Congress that American bills of rights were intended "to raise barriers to power in all forms and departments of Government." This concept was repeated more than once and was a major point of Madison's Congressional speech introducing his Bill of Rights amendments. The historians are forced to ignore Madison's stated views in order to pursue their confused arguments that are founded on an accumulation of errors about Second Amendment intent. [See parts 1, 2, and 3 of this series for the historians' earliest erroneous statements regarding the intent of the state bills of rights, which contain the Second Amendment's predecessor language.]
Conclusion - Assertion #13 is Erroneous
The historians' assertion that the militia was what Madison considered as an "urgent question to confront" is without historical foundation and is used for entirely diversionary purposes in their brief. Madison never mentioned this "urgent" need for Congress to confront militia powers, and the period evidence clearly indicates, as shown in the previous post, that his concern was private rights in the case of all of the predecessors of the first eight amendments.
Root Causes of Never-ending Second Amendment Dispute - Part 22
More Error Based Confusion in the Historians Heller Amicus Brief
The historians claim that:
Assertion #12
"In drafting the amendments that evolved into the Bill of Rights, James Madison had no reason to place a private right to firearms on his agenda." [p.25]
Fact Checking of Assertion #12
The historians' claim that Madison was not intent on a Second Amendment predecessor relating to "a private right to firearms" completely ignores relevant period sources on Bill of Rights development. The Antifederalists who prepared Second Amendment predecessor language for a new federal bill of rights understood that it would protect the specified rights against the new government in exactly the same way that the state bill of rights predecessors it was based upon protected the same rights against abuse by the state governments, and Madison also understood the proposals this way (as examined in a number of prior parts of this series).
In effect, the historians are arguing that Madison did not have a clue about what he was doing with his own Second Amendment predecessor, although they do not openly state this. Instead, they do the equivalent by completely ignoring every piece of historical evidence about his efforts to organize, group related proposals, and insert these groups of related amendments into the Constitution. They also ignore the period comments by contemporaries indicating how they understood Madison's proposal. He did not intend to add a list of amendments at the end of the Constitution as ultimately occurred. Instead, Madison intended to insert amendments directly into the document at locations where related material was already located. Which provisions did Madison group the Second Amendment with and where did he plan to put it in the Constitution? Was it grouped and placed along with the Tenth Amendment that the historians have directly related its intent to? No. Was it to be placed among the militia powers that the historians have insisted all along it was related to? No.
Madison grouped the Second Amendment predecessor among a large collection of private rights protections. He wanted all of these inserted into the Constitution directly after clauses 2 and 3 of Article I, Section 9. These are the only provisions in the U.S. Constitution that protect specific private rights against violation by the new federal government. Exactly which rights did he group his Second Amendment related language with? - First, Third, Fourth, Fifth, Sixth, and Eight Amendment predecessors, private rights protecting provisions all. [OSA, pp.654-656]
Based on Madison's own actions, it is clear that the historians' assertion is completely off base. Further evidence of Madison's private rights understanding is found in the fact that contemporaries who commented on this proposal understood it just as he did - as protection for private arms rights.
Fisher Ames, a Massachusetts member of the House wrote this about Madison's proposals:
"The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people. Freedom of the press, too." [OSA, p.668]
Tench Coxe's article explaining the purpose for every one of Madison's proposals treated the Second Amendment predecessor as assuring that "the people are confirmed by the next article in their right to keep and bear their private arms." For what purposes? To prevent tyranny by the government itself or by government raised military forces. [OSA, p.671]
Conclusion - Assertion #12 is Erroneous
The period evidence directly contradicts the historians on this matter. Madison had every reason to pursue a Bill of Rights provision protecting the private right to keep and bear of arms. Madison's actions regarding the Second Amendment are no different than those relating to the other private rights protections in the first eight amendments.
Readers of the professional historians' Heller amicus brief have two choices. They can choose to ignore the period evidence indicating the Second Amendment was intended to protect private rights, just as the historians have done. The alternative is to give the Founders a little credit for understanding exactly what they were doing and saying exactly what they meant by recognizing that the historians have founded their brief on an accumulation of errors that undermine every claim they make about the intent of the Second Amendment and its predecessors.
The historians claim that:
Assertion #12
"In drafting the amendments that evolved into the Bill of Rights, James Madison had no reason to place a private right to firearms on his agenda." [p.25]
Fact Checking of Assertion #12
The historians' claim that Madison was not intent on a Second Amendment predecessor relating to "a private right to firearms" completely ignores relevant period sources on Bill of Rights development. The Antifederalists who prepared Second Amendment predecessor language for a new federal bill of rights understood that it would protect the specified rights against the new government in exactly the same way that the state bill of rights predecessors it was based upon protected the same rights against abuse by the state governments, and Madison also understood the proposals this way (as examined in a number of prior parts of this series).
In effect, the historians are arguing that Madison did not have a clue about what he was doing with his own Second Amendment predecessor, although they do not openly state this. Instead, they do the equivalent by completely ignoring every piece of historical evidence about his efforts to organize, group related proposals, and insert these groups of related amendments into the Constitution. They also ignore the period comments by contemporaries indicating how they understood Madison's proposal. He did not intend to add a list of amendments at the end of the Constitution as ultimately occurred. Instead, Madison intended to insert amendments directly into the document at locations where related material was already located. Which provisions did Madison group the Second Amendment with and where did he plan to put it in the Constitution? Was it grouped and placed along with the Tenth Amendment that the historians have directly related its intent to? No. Was it to be placed among the militia powers that the historians have insisted all along it was related to? No.
Madison grouped the Second Amendment predecessor among a large collection of private rights protections. He wanted all of these inserted into the Constitution directly after clauses 2 and 3 of Article I, Section 9. These are the only provisions in the U.S. Constitution that protect specific private rights against violation by the new federal government. Exactly which rights did he group his Second Amendment related language with? - First, Third, Fourth, Fifth, Sixth, and Eight Amendment predecessors, private rights protecting provisions all. [OSA, pp.654-656]
Based on Madison's own actions, it is clear that the historians' assertion is completely off base. Further evidence of Madison's private rights understanding is found in the fact that contemporaries who commented on this proposal understood it just as he did - as protection for private arms rights.
Fisher Ames, a Massachusetts member of the House wrote this about Madison's proposals:
"The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people. Freedom of the press, too." [OSA, p.668]
Tench Coxe's article explaining the purpose for every one of Madison's proposals treated the Second Amendment predecessor as assuring that "the people are confirmed by the next article in their right to keep and bear their private arms." For what purposes? To prevent tyranny by the government itself or by government raised military forces. [OSA, p.671]
Conclusion - Assertion #12 is Erroneous
The period evidence directly contradicts the historians on this matter. Madison had every reason to pursue a Bill of Rights provision protecting the private right to keep and bear of arms. Madison's actions regarding the Second Amendment are no different than those relating to the other private rights protections in the first eight amendments.
Readers of the professional historians' Heller amicus brief have two choices. They can choose to ignore the period evidence indicating the Second Amendment was intended to protect private rights, just as the historians have done. The alternative is to give the Founders a little credit for understanding exactly what they were doing and saying exactly what they meant by recognizing that the historians have founded their brief on an accumulation of errors that undermine every claim they make about the intent of the Second Amendment and its predecessors.
Thursday, June 18, 2009
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.
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.
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