The Purpose of the Second Amendment - What was the Original Language, Who Wrote It, and Why?

     The "well regulated militia" language of the Second Amendment, which has confused so many for so long, is relatively easy to trace back to its earliest American author and bill of rights usage. Here is why. Congress based the first clause of the Second Amendment on an exact quote taken from the 1776 Virginia Declaration of Rights. [The Origin of the Second Amendment, p.748] Virginia's Second Amendment related language was America's first in a state constitutional level document. So what exactly was the language Congress relied upon?

"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.459]

     Why was this language relied on by Congress as an amendment to the Constitution? The ratifying conventions of Virginia and North Carolina adopted proposed bills of rights quoting Virginia's earlier bill of rights language. [OSA, pp.459, 505] New York's convention included virtually identical language, which itself had been based on Virginia's language. New York described a well regulated militia as "including the body of the people capable of bearing arms". [OSA, p.481]  It is clear that these bill of rights "well regulated militia" references related to the body of the people, not to a government formed select militia like the modern National Guard as has so often been claimed by proponents of gun control.

     So who wrote this original language back in 1776? George Mason, [The Founders' View of the Right to Bear Arms, p.62]  and he used virtually the same language prior to the beginning of the Revolutionary War to describe a voluntary defensive association in Fairfax County, Virginia. It was formed so the people could protect their rights and the existing constitution from violation by government officials and the military forces raised by them. The language that the Second Amendment was directly based upon was intended to protect against unconstitutional and rights violating actions of government carried out by force.

     There is extensive historical evidence that "well regulated militia" did not refer to a government regulated or authorized militia, but rather to locally organized defensive forces. Mason's early 1775 well regulated militia references applied to self-embodying, self-organizing, self-officering, self-training, and self-arming associations of all the free men for local defense against a current danger - British government officials and forces. [FVRBA, pp.45-50] No such local defensive associations could have existed unless the men possessed and knew how to use their own arms. The historical sources indicate that government officials and forces were taking every measure possible to limit the ability of Americans for self-defense by decreasing the availability of arms and ammunition. [FVRBA, pp.36-43]

     This historical information makes the Second Amendment's language and meaning much more clear. Claims of ambiguity about the Second Amendment evaporate once the stated meaning of its terms and the historical background of their use are known. We find that what advocates of gun control have always said about the Second Amendment's intent, that it was not intended to protect individual rights, is diametrically opposed to reality and extensive period historical evidence. Individuals voluntarily associated for defense against unconstitutional and rights violating actions of force by the government in 1774 and 1775 prior to the formation of any new American governments or any hostilities of the Revolution. This activity was based upon fundamental, unalienable rights that Americans subsequently protected against government violation in their state and federal bills of rights.

     For further and much more detailed information about the Second Amendment's development and purpose, read The American Revolutionary Era Origin of the Second Amendment's Clauses, my short, documented online history.

Second Amendment Intent / Right to Keep and Bear Arms Explained

Updated January 6, 2013

Visitors looking for facts about Second Amendment history and intent can read the results of my research online in several articles and posts, which are described and linked below. The facts of American history can end the never-ending dispute over Second Amendment intent, but only if they are understood and deployed to undermine the error based belief system of gun control supporters.

First, the shortest and most detailed account of Second Amendment history and intent is found in my article, The American Revolutionary Era Origin of the Second Amendment's Clauses. As noted in the prior post, this was printed in The Journal on Firearms & Public Policy's 2011 issue. It traces the well regulated militia and right of the people to keep and bear arms language of the Second Amendment back in history to their earliest American bill of rights usage and authors. Then in goes back earlier in American history to the actual events from which such usage developed. The article amounts to an online crash course in Second Amendment history and intent.

Other online articles include four analyzing briefs supporting Washington DC in the Heller case for extensive historical errors. These demonstrate that those supporting gun control are entirely off base in understanding American history and rights. Such historical arguments were presented in briefs of fifteen professional historians (written by Stanford's Jack Rakove), the city of Chicago, a large group of civic organizations, and three professional linguists. The first analysis, of the historians' errors, Why DC's Gun Law is Unconstitutional, was published by History News Network on February 17, 2008.

Three other articles were published at the Origin of the Second Amendment website. The Windy City's Heller brief attempted to sway the Supreme Court by repeated use of the term "federalism". My article, Chicago Re-Writes U.S. Bill of Rights History, examines and documents historical errors in Chicago's brief.

An extensive founding era document section was presented as an appendix in the Heller brief filed by numerous civic organizations. The Second Amendment as Militia Law, or, Bill of Rights? What Bill of Rights?, is the article examining the off-track historical interpretation presented within it.

Historically oriented analysis of the linguists' Heller brief is found in Professional Linguists Provide Half a Loaf with No Bill of Rights Ingredients.

A common theme runs through the historical Heller briefs of gun control supporters - lack of American Bill of Rights history, context, and intent. What this means in general terms is that they are all wrong, a fact documented at this blog in extensive analyses of the Heller professional historian amici entitled, Root Causes of Never-Ending Second Amendment Dispute, which consists of 24 posts. The gun control advocate view of the Second Amendment is a house of cards - nay, a rather extensive castle of cards. Removing the foundation, which consists of factual errors, causes the whole to crumble. I strongly recommend those wanting to fully grasp the historical import of these posts read them in order starting from part 1 (linked above), because the errors of fact build upon each other. The posts are documented and very detailed (read boring), but the payoff in essential historical knowledge is priceless.

The same suggestion is offered for two other series of six blog posts, each dealing with professional historians' mistakes about the Second Amendment intent. In the Supreme Court's McDonald case, which dealt with the Fourteenth Amendment issue of whether the Second Amendment was intended to apply to state and local governments, some of the same professional historians returned to re-argue Heller related historical issues. This was probably an attempt to get one justice to change a vote. Once again, there were significant historical errors and attempts to divert away from American Bill of Rights history in the two briefs analyzed. The first series, Historians Try to Sell Brooklyn London Bridge to U.S. Supreme Court, attempts to divert to English history for understanding an American Bill of Rights provision. The second series, Historians Try to Sell Brooklyn London Benjamin Franklin Bridge to the U.S. Supreme Court, deals with Pennsylvania history. It was in Pennsylvania that "the people have a right to bear arms" language originated in American bills of rights.

Don't forget to share this post or the above links with those interested in protecting their rights.

Shall Not Be Infringed - How Did The Framers Use This Language?

Updated February 21, 2013
In current discussion about gun control,  the theme regarding Second Amendment intent seems to be that there is no intention whatever to violate Americans' rights. The government regulations and restrictions being offered, it is claimed, would not be prevented by the Second Amendment because they are "reasonable" and make good sense, thus, presumably, not a Second Amendment violation.

What exactly did the founding generation understand the restrictive "shall not be infringed" langauge regarding the right of the people to keep and bear arms in the Second Amendment to mean? Was it only a protection against complete disarmament of the people? Would extensive banning of varieties and types of arms be A-OK? Did it mean that anything gun control advocates suggest as "reasonable" the government can implement without violation?

Those interested in this subject will find my February 8, 2009 post, The Meaning of 'Shall Not Be Infringed', most helpful. It places this language in its correct Bill of Rights context during the Founding Era and examines how those involved in developing American bill of rights language actually used it.

Pass the link on to your friends.

Second Amendment Under Attack!!!

The recent tragic school shooting in Connecticut has resulted in an outpouring of emotion laden grief, numerous calls for draconian gun control laws, and agitated commentary about the Second Amendment and its intent. Those who visit this blog are most likely looking for historical information to help defend their rights. A few, on the other hand, might be looking for someone to blame for the recent horror or to cast names (in typical Piers Morgan style).

I will address some of the erroneous and misleading claims being made about the Second Amendment in future posts. Any name calling by a commenter will result in a deleted comment.

For those looking for historical information, in addition to the numerous posts of this blog, I recommend reading my recent article, The American Revolutionary Era Origin of the Second Amendment's Clauses, which appeared in the 2011 issue of The Journal on Firearms & Public Policy. This short article traces the Second Amendment's language back to its earliest American authors, usage, context, and intent, and it is fully documented.

For those wanting the Ratification Era period sources in a document collection for their own research, The Origin of the Second Amendment: A Documentary History of the Bill of Rights in Commentaries on Liberty, Free Government, and an Armed Populace, 1787 - 1792, is readily available from Amazon.com in paperback (and also available in a sewn library bound hardcover). The Origin of the Second Amendment is the main document source for the above article as well as my most recent book, The Founders' View of the Right to Bear Arms: A Definitive History of the Second Amendment. Both of my books have been extensively cited in Federal court cases (Origin in Emerson, 2001, and Parker, 2007; both in Heller, 2008).

I have spent a lifetime researching the Second Amendment. Using American historical sources, I have documented the fact that both clauses of the Second Amendment were understood by the founding generation as protecting individual rights. Neither clause related to protecting state authority over the militia because both clauses were based directly on government limiting state declaration of rights provisions. The historical facts supporting these statements are overwhelming and consistent, and they can be found in my article and the two books described above.

The knee jerk reaction of gun control advocates to maniacal shootings is likely a factor in why the problem has not been solved. Every action taken to limit arms possession, the ability to defend oneself, and to create gun free zones by law has failed to stem violence by maniacs, especially in gun free zones. Those disarmed by law cannot defend themselves, and it is not the government's job to defend individuals, nor is the government very good at it.

Public policy should not be based upon hasty action that will not solve the problem being addressed. It should instead be based upon facts, and all relevant facts should be studied. Instead of searching for underlying causes of manic behavior, the intemperate demands for immediate action to do "something" about guns drown out all inquiry or cool reflection. Action should not be based upon the politicized, ideological beliefs of those who hate guns and despise the fundamental rights of American citizens.

For those here seeking historical facts, as well as any seeking someone to blame, I suggest taking note of the information at the SSRI Stories webpage. It presents a mind-boggling collection of school shooting and other maniacal action reports that have linked perpetrators to the use of legal drugs of the Prozac/Luvox class. That this situation has existed without study for decades and has yet to be addressed, largely due to the shrieking demands for gun control after each related tragedy, speaks volumes about why the ideological solutions widely supported by the mainstream media divert all attention away from necessary study of, and changes to, what appears to be a legal drug related catastrophe of the first order.

Shortly after this latest tragedy, I happened to listen to a National Public Radio program that seemed to be set up to discuss the need for gun control. Most of the people who called in during the period I listened instead wanted to discuss the legal psychotropic drug related mania problem. Perhaps there will be some inquiry into the widespread use of this class of drugs and their relationship to manic violence sprees in the near future. This may lead to study that is thorough, relevant, and might actually help prevent the school shooting problem rather than just doing “something” about guns. The latter action is counterproductive for self defense.

Let others know about the SSRI Stories webpage. You might also let others know about my research if they are interested in historical information from an independent Second Amendment scholar.

Richard Epstein on The Libertarian Gun Fallacy

Richard Epstein's latest foray into Second Amendment interpretation was published January 31st in the Hoover Institution Journal's Defining Ideas series. He had previously praised Justice Stevens' Heller dissent as "one of his ablest opinions" in an October 17, 2011 Defining Ideas article. The new article, entitled The Libertarian Gun Fallacy, argues that the Heller and McDonald cases were wrongly decided by the Supreme Court because the Second Amendment is not a protection for individual rights, but rather is a federalism provision intended to protect the states. Prof. Epstein bases his interpretation on the "well regulated militia" clause of the amendment. He supports his view by analyzing every provision in the Constitution containing a reference to the militia except the Fifth Amendment.

My response to this article is posted at Defining Ideas. In it, I note that Epstein tore the Second Amendment out of its actual American bill of rights related historical context. This approach makes it impossible to determine what its language was intended to mean. A much better understanding of American bill of rights related history solves this problem. American history indicates that both Second Amendment clauses were intended as individual rights protections because both were based on prior restrictions on state governments found in state bills of rights. The Second Amendment's predecessor language was not understood as protecting state governments. A link was provided to my latest article, The American Revolutionary Era Origin of the Second Amendment's Clauses, which examines and documents relevant American bill of rights history.

The History of the Second Amendment's Clauses

Now that my history of the Second Amendment, The American Revolutionary Era Origin of the Second Amendment's Clauses, is easily available online, it is my hope that the Second Amendment dispute, which is the mother of all ideological divides, might start to wane. Public policy decisions should be based upon facts - all of the relevant facts - not just a selection of historical information that results in a plausible sounding argument that is directly contradicted by extensive, relevant information.

As noted in a previous post, Prof. Jack Rakove criticized Justice Scalia's Heller decision last July 4th as containing "intellectual embarrassments of the first order". He did not seem to realize there were such embarrassments in his own brief to the Supreme Court. In December of 2010, Prof. Pauline Maier indicated that citing the founders and framers to justify striking down state and local gun laws would be "an abuse of history." She strongly supported the position taken in the historians' brief and appeared not to recognize mistakes within it.

It appears the historians involved in the Heller brief are totally unaware of the errors that have been documented in their presentation to the Supreme Court. I have decided to contacted each of those still teaching through their university email addresses to let them know about the new article, pointing out that it documents extensive information overlooked in their brief. The article itself links to documentation of factual errors in the brief.

Twelve of the historians were contacted on Dec. 31st. Two, Profs. Lois Schwoerer of George Washington University and John Shy of the University of Michigan are retired, and therefore have no university email readily available, and, unfortunately, Prof. Higginbotham passed away in 2008. So far I have received a reply from one of the historians thanking me and indicating an interest in reading the article.

On two previous occasions long ago I attempted to contact notable persons who supported gun control in an attempt to establish a dialogue over what the facts about the Second Amendment actually were. One was a media personality, the other a retired state superior court judge. In the first case no answer was returned, and in the second, I received a mass of literature published by Handgun Control. Those were very disappointing results.

We will see what the new year brings with this initiative.

Happy New Year!

The American Revolutionary Era Origin of the Second Amendment's Clauses

 Updated February 21, 2013
   Happy Bill of Rights Day!
   My article, The American Revolutionary Era Origin of the Second Amendment's Clauses, was published in Volume 23 (2011) of the JOURNAL ON FIREARMS & PUBLIC POLICY.
   It traces and documents both clauses of the amendment back through their earliest American historical roots. The patriot actors who brought about the language and its earlier predecessors, their terminology, and its meaning to them are all examined and documented in a relatively short article.
   What The Revolutionary Era Origin of the Second Amendment's Clauses represents is a complete counter to the numerous errors and missing history foisted on the Supreme Court by Prof. Jack Rakove and fourteen other professional historians in their Heller case amicus brief. This article places the Second Amendment back into its actual bill of rights developmental context and fills in the massive related void found in the Rakove brief. The state bill of rights predecessors are re-connected to the Second Amendment in plain fashion because James Madison and Congress both relied directly on quotes of such provisions by state ratifying conventions in their desires for the two-clause Second Amendment predecessor.
   The early Revolutionary Era usage of "well regulated militia" language by George Mason in reference to local self-embodying associations of self-armed men for mutual defence against unconstitutional actions by government officials and forces is examined. It was Mason who later authored the 1776 Virginia Declaration of Rights, America's first, and Virginia's 1788 model for the U.S. Bill of Rights. The original American state bill of rights "well regulated militia" language was intended to constitutionally protect an armed population that could keep government raised forces under their control. That same language was used verbatim in Virginia's demand for the U.S. Bill of Rights and was understood as contained within the congressonal proposal that became the Second Amendment.
   A final interesting point. George Mason, Virginia's 1776 and 1788 bill of rights author, and James Madison, who took a version of Virginia's 1788 model to Congress in 1789, were both members of the 1776 committee that drew up and approved Virginia's 1776 state bill of rights prior to the Declaration of Independence. This article makes clear that Madison, present at the birth of the American state bill of rights, was under no misapprehension of Second Amendment language and purpose when he placed its "well regulated militia" clause in the middle of a large group of private rights protections as a proposed U.S. Bill of Rights for presentation to Congress in 1789.

Uneven Stevens - Uneven Epstein

Richard Epstein, in an online article, Uneven Stevens, published by the Hoover Institutions' Defining Ideas Journal, praises retired Supreme Court Justice Stevens for some of his decisions, which he describes as "landmarks in the law." According to Epstein, one of his "ablest opinions is the dissent in the gun control case, District of Columbia v. Heller".

On the contrary, Stevens simply makes the historical facts fit his preexisting beliefs in Heller. As an example, the dissent quotes part of a George Mason speech in the 1788 Virginia Ratifying Convention, but the full Mason speech directly contradicts and undermines Stevens' entire dissent. Defining Ideas published my letter following Epstein's article in which I note this historical point and the fact that the law is in a sorry state indeed if the Heller dissent is "one of the landmarks in the law."

2011 Gun Rights Policy Conference

I will be attending the Second Amendment Foundation's 2011 Gun Rights Policy Conference in Chicago this weekend. Hope to meet any of those who follow this blog if you happen to be there. If anyone has Second Amendment history related questions, feel free to say hi and ask away.

Professor Jack Rakove's Intellectual Embarrasments

Jack Rakove, professor of history at Stanford University, who was one of fifteen PhD. holding academic amici supporting Washington DC's gun control laws in the Heller case, made a most interesting comment this Fourth of July. It appeared at The Browser and included a criticism of U.S. Supreme Court Justice Scalia's decision in that case.

"I submitted a brief in the District of Columbia vs Heller case, from three years ago. That was the case in which the Court struck down a 32-year-old handgun ban as incompatible with the Second Amendment. I think there are intellectual embarrassments of the first order in Justice Scalia's opinion."

Those who have read the series Root Causes of Never-Ending Second Amendment Dispute at this blog will be much amused by the professor's claim. As documented in the 24 posts of the Root Causes series, Prof. Rakove's Heller brief brimmed with errors of historical fact and left out the most relevant information for understanding the Second Amendment's intent. It is Prof. Rakove's brief to the Supreme Court that contains "intellectual embarrassments of the first order". There were so many errors of historical fact in the Rakove brief that the historical dissent from Justice Stevens only cited it once, and that was for a point relating to the English Bill of Rights.

The very first post of this blog, which was Part 1 of the Root Causes of Never-Ending Second Amendment Dispute series, documents the first of numerous Rakove intellectual embarrassments in the Heller case.

Historians Try to Sell Brooklyn London Benjamin Franklin Bridge to U.S. Supreme Court - Part 6

Contradictions and Errors in the Pennsylvania History McDonald Amicus

The historians brief attempts to convince the Supreme Court Justices that their unanimous Heller case understanding that Section XIII of Pennsylvania's 1776 Declaration of Rights ("that the people have a right to bear arms") related to individual rights was in error.

"As the Heller majority and both dissents recognized, the 1776 Pennsylvania Constitution provides insight into the then-prevalent conception of the right to bear arms. . . . Three clauses of its [Pennsylvania's] Declaration of Rights in particular warrant attention, the first, eighth, and thirteenth, all of which deal with individual or collective self-defense:" [p.18]

The historians then quote the following from Pennsylvania's Declaration of Rights:

"I. THAT all men are born equally free and independent, and have certain natural, inherent and unalienable Rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.
VIII. THAT every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service, when necessary, or an equivalent thereto . . . Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent.
XIII. THAT the people have a right to bear arms for the defence of themselves and the State; and as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up: And that the military should be kept under strict subordination to, and governed by, the civil power." [pp.18-19]

The first assertion from the historians relating to the language they have quoted is as follows:

"This language reflects the Presbyterian complaints against the Quaker government’s perceived failure to provide for the common defense over the previous twenty years." [p.19]

The quoted language could not be a complaint against Pennsylvania's Quaker government for several reasons, the least of which is that Pennsylvania did not have a "Quaker government." The colony had a representative assembly, and Quakers, while a large minority, had not been the majority population in the colony for some time. Quakers were, however, able through political alliances to prevent the adoption of militia laws like those of the other colonies during the described period as well as throughout the prior colonial history when it was more directly under Quaker control. As a result, colonial Pennsylvania never required men to perform militia duties or obtain arms for such purposes, unlike the other American colonies that all passed militia laws in colonial times.

Pennsylvania copied most of the language in Sections I, VIII, and XIII from Virginia's Declaration of Rights. All Revolutionary Era Declarations of Rights borrowed or copied provisions from the declarations of earlier states except for Virginia, which produced the first such declaration. Thus, Virginia and Pennsylvania, the second state to produce a declaration of rights, were often borrowed from or copied by later states. The language quoted by the historians from Pennsylvania's Declaration of Rights is not unique to Pennsylvania because much of it was copied from Virginia, and all of Pennsylvania's was copied verbatim by Vermont. Pennsylvania's provisions were also borrowed by other states. These facts contradict the historians' assertion since the language clearly does not relate to any Quaker specific Pennsylvania history in these other states.

Examining the provisions of Section XIII specifically, it is evident that these clauses are not complaints against Quakers, but rather complaints against the British. Quakers never attempted to raise an army in time of peace, but the British actually did so in Massachusetts. Suggesting otherwise would be inane. Similarly, Quakers were the last persons on the planet to have any interest in making the military superior to the civil power, but that was exactly what the British had done in Massachusetts. As far as the people's right to bear arms for defense, Quakers never prevented any of the people from defending themselves, their families, their communities, or the colony. However, the British had been making every effort for a considerable time to prevent the inhabitants under their military control in Massachusetts from possessing powder or arms (a few Loyalists excepted), thus making it impossible for the people there to protect themselves or the colony.

Not only have the historians confused the Quakers and the British, but they have confused the power limiting intent of Section XIII bill of rights protection with the idea that the Section somehow authorized the government to control arms. This is evident in the very next sentence of the brief:

"Their [Presbyterians] predominant concern—as reflected in the [quoted] text—was establishing a coherent system of community defense so that the government could protect the people’s natural rights." [p.19]

Nothing in the language of the three sections quoted in the brief has anything to do with "establishing a coherent system of community defense so that the government" could take actions. The historians entirely overlook the stated purpose of these Declaration of Rights provisions. The title of the Declaration of Rights indicates that purpose as follows:

"A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH, OR STATE OF PENNSYLVANIA" [OSA, p.752]

In other words, the quoted language represents rights of the inhabitants, not establishment of government power over defense. This is made even more clear by reference to Section 46 of Pennsylvania's FORM OF GOVERNMENT, a major portion of Pennsylvania's Constitution that the historians fail to mention even exists:

"Sect. 46. The declaration of rights is hereby declared to be a part of the constitution of this commonwealth, and ought never to be violated on any pretence whatever." [Thorpe, V, p.3091]

This provision and the title of the Declaration of Rights clarify that the historians are taking the quotes out of their actual bill of rights related context, which is a limit on government authority, and using them instead as if they confer authority on the government over duties relating to arms and defense. That this is a major blunder is further clarified by reference to Section 5 of the Form of Government:

"Sect. 5. The freemen of this commonwealth and their sons shall be trained and armed for its defence under such regulations, restrictions, and exceptions as the general assembly shall by law direct, preserving always to the people the right of choosing their colonels and all commissioned officers under that rank, in such manner and as often as by the said laws shall be directed." [Thorpe, V, p.3084]

It cannot be more clear that it is Section 5 of the Pennsylvania Constitution's Form of Government that establishes "a coherent system of community defense so that the government" can take defensive actions, not any of the Declaration of Rights provisions. The historians have grossly confused the purpose of the government limiting Declaration of Rights protections they quote in an effort to tie the meaning of the Article XIII arms related clause to government authority.

There is no doubt that Pennsylvania's Quaker history influenced some of the state's Declaration of Rights language, but not in the way portrayed by the historians. The "people have a right to bear arms" language of Section XIII relates to longstanding activities of the people of Pennsylvania, not to the new government's authority. Remember, Pennsylvania's colonial government never required anyone to defend the colony or possess arms for that purpose. Thus, throughout the colony's history, all organized defensive activities, of which there were a considerable number, were carried out by individuals who voluntarily associated for defense when necessary. This defensive activity was possible because private arms possession and use were widespread in the colony, not because the government was providing direction under law for defense.

Individual men took up their privately owned arms, with which they could defend themselves, and joined with other individuals for organized defense. They formed companies of men, elected officers, and trained themselves for mutual defense. [see FVRBA, pp.15-25] It is these private arms possession related activities that the Section XIII language refers to. In fact, the people of Pennsylvania had been continuously engaged in defending their natural rights against the actions of British government officials and forces for over a full year before the text the historians quote was ever written.

Thus, the belief of the historians that the quoted language represents complaints against Quaker government in Pennsylvania or is intended as support for government authority rather than as provisions that are actually a limit on government authority is historically inaccurate and unsupportable.

Pennsylvania's 1776 Constitution began with an untitled preamble, which among other things indicated that the Constitution consisted of a Declaration of Rights and Form of Government. The following headings and excerpts of provisions from the 1776 Pennsylvania Constitution are presented here because they are of essential importance in examining various misleading and erroneous claims in the historians' McDonald brief. Note that the underlined portions of Declaration of Rights sections I, VIII, and XIII, below, are the specific clauses quoted by the historians in their brief.

"A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH, OR STATE OF PENNSYLVANIA
I. That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.
. . . .
VIII. That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service, when necessary, or an equivalent thereto: But no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives: Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent, nor are the people bound by any laws, but such as they have in like manner assented to, for their common good.
. . . .
X. That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure. . . [under general warrants that "are contrary to that right"]
. . . .
XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.
XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.
. . . .
XVI. That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance." [OSA, pp.752,754]
. . . .
"PLAN OR FRAME OF GOVERNMENT FOR THE COMMONWEALTH
OR STATE OF PENNSYLVANIA
. . . .
Sect. 5. The freemen of this commonwealth and their sons shall be trained and armed for its defence under such regulations, restrictions, and exceptions as the general assembly shall by law direct, preserving always to the people the right of choosing their colonels and all commissioned officers under that rank, in such manner and as often as by the said laws shall be directed.
Sect. 6. [Every freeman of twenty-one years of age resident in the state for one year prior to election for representatives who pays taxes, and their sons of that age, even if they do not pay taxes, shall be intitled to vote. {condensed}]
. . . .
Sect. 46. The declaration of rights is hereby declared to be a part of the constitution of this commonwealth, and ought never to be violated on any pretence whatever." [Thorpe, V, pp. 3084, 3091]

Historians Try to Sell Brooklyn London Benjamin Franklin Bridge to U.S. Supreme Court - Part 5

Contradiction and Error in the Pennsylvania History McDonald Amicus from Professional Historians

In part 4 of the Franklin Bridge series, a second, shorter statement of George Mason that appeared in the middle of the quoted portion of the historians' brief was set aside for later examination here because it was diversionary in nature. The quoted portion is taken from the next to last sentence of Mason's June 14 Virginia Ratifying Convention argument in support of an amendment that would assure the states power over the militia.

"The solution Mason saw was that “divine Providence has given every individual – the means of self-defense” by joining a militia to combat a standing army." [p.25]

Here is Mason's entire statement showing that the quoted portion of Mason's statement was actually the commonly understood analogue removed from an analogy he was making:

"If the [militia] clause [of the Constitution] stands as it is now, it will take from the state legislatures what divine Providence has given to every individual -- the means of self-defence." [The Origin of the Second Amendment, p.402]

The historians present the Mason statement as if it was a "solution" for the problem he discussed in the Virginia Convention militia powers debate. In reality, as seen in part 4, Mason specified the solution as a militia powers amendment, not the Second Amendment predecessor, and the historians completely ignored this fact. They used Mason's analogue as a diversion away from the actual militia powers amendment solution.

Mason understood that, under the new Constitution, the states could be deprived of their means of defense, which was power over the militia, due to the federal government's paramount powers on that subject. To make his argument more clear, he presented a commonly understood point, that every individual possessed the means of self-defense, a reference to the fact that every individual possessed arms for self-defense. Such an analogue would make no sense whatever unless it was widely understood and factually accurate. The historians complete misrepresentation of this Mason quote destroyed Mason's analogy by erroneously making the analogue dependent upon militia membership, something Mason neither stated, implied, nor intended based upon his complete statement.

Turning to internal contradictions, the above Mason quote conflicts with the historians' views. They argue that period discussion was all about the militia and the necessity of the states being guaranteed power over the militia, not about private ownership of arms and related rights. Yet they provide period evidence that contradicts their view. Here are three of their militia-centric statements, all from a single paragraph, which conflict with historical information presented elsewhere in their own brief:

"While the Second Amendment debates focused on the militia, they virtually ignored any right of individuals to defend themselves personally with firearms. . . . The debate was a discussion concerning the militia, nowhere in it is there the slightest hint about a private or individual right to own a weapon. This should not surprise us, for “[i]n all the discussion and debates” over the Second Amendment, “from the Revolution to the eve of the Civil War, there is precious little evidence that advocates of local control of the militia showed an equal or even a secondary concern for gun ownership as a personal right."" [pp.27-28]

Mason's quote, which appeared two pages earlier in the brief and was examined above, conflicts with the historians' opening statement. Mason described the fact that "every individual --[has] the means of self-defence", a clear reference to "every individual" having arms for self-defense.

The historians' statements are contradicted by their quote of Tench Coxe, which appears on the previous page of their brief:

"the people are confirmed in the next article in their right to keep and bear their private arms.” [p.26]

Obviously, if the people are confirmed "in their right to keep and bear their private arms" [OSA, p.671] as Coxe described, then the historians' denial that the debate was about "gun ownership as a personal right" is in direct conflict with this period fact.

Coxe's statement related to the purpose of James Madison's Second Amendment predecessor, which stated:

"Fourthly, that in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit:
. . . .
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country . . ." [OSA, pp.654-655]

Understanding the context of Madison's Second Amendment predecessor is essential for properly understanding Coxe's explanation. It was the fourth of ten articles to be inserted at Madison's specified location in the Constitution. The other nine articles were protections later included in the First, Third, Fourth, Fifth, Sixth, Eight, and Ninth Amendments, all of which relate to private rights. The order of the protections later found in the First, Second, and Third Amendments is exactly the same as originally proposed by Madison. The location specified by Madison for insertion is the only one in the Constitution where individual rights are protected against the federal government. [OSA, p.654-656] Thus, it is clear that Madison treated the Second Amendment predecessor as a typical bill of rights protection for individual rights. This makes perfect sense because he developed these protections from the Virginia proposal for a Bill of Rights, which quoted language taken directly from existing state bills of rights. Coxe's statement describing a right of the people to keep and bear their own "private arms" directly conflicts with the historians' view.

There is also a conflict between the historians' three statements on pp.27-28 of the brief and the argument they present on its following page:

"This suggests that Madison and Congress knew about the "Reasons of Dissent [of the Pennsylvania Minority]," read them, and treated them like a menu, selecting some options and rejecting others, including the individual-oriented gun-right provisions. . . . But Congress decided not to recognize the individual-oriented gun rights in the Dissent, including the right not to be disarmed except in exceptional circumstances and the right to hunt." [pp.28, 29]

Here, the historians state that the arms provision of the Pennsylvania Minority (quoted directly below) protected "individual-oriented gun-right provisions", exactly what they deny was a topic of period Second Amendment related discussion on the previous page of their brief, specifically, the "individual right to own a weapon" and "gun ownership as a personal right." Exactly how individual gun ownership as a personal right gets proposed as a constitutional amendment without any discussion whatsoever is problematic on its face.

This is the Pennsylvania Minority's Second Amendment related proposal:

"That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals". [OSA, p.160]

Not only are the historians' arguments repeatedly contradicted by period sources discussed or quoted in their own brief, but the historical facts prove they are entirely incorrect in their view that period Second Amendment debate was always about the militia and not about gun ownership as a personal right. The exact opposite is the fact. Protection for the people's right to keep arms was offered by Antifederalists in every state ratifying convention where bill of rights provisions were proposed. These included Pennsylvania [OSA, p.151], Massachusetts [OSA, p.260], New Hampshire [OSA, p.446], Virginia [OSA, p.459], New York [OSA, p.481], North Carolina [OSA, p.505], and Rhode Island [OSA, p.735]. Each of these conventions voted on a bill of rights related provision either preventing disarming of the people or protecting the people's right to keep arms, which are equivalent provisions in different words. In each case, these provisions were associated with clearly bill of rights related provisions. [see citations above]

And directly contrary to the mixed up views of these professional historians, in only three of the ratifying conventions did the Antifederalists propose a militia powers amendment, Pennsylvania [OSA, p.151], Virginia [OSA, p.460], and North Carolina [OSA, p.507]. In other words, the historians have everything backwards. The right to keep arms was included in all seven of the ratifying conventions where bill of rights amendments were discussed and proposed, whereas militia powers amendments were proposed in only three conventions. Seven is a lot more than three. The private right to keep arms was actually proposed as an amendment to the Constitution more than twice as often as an alteration of the militia powers. This indicates that the historians continually overlook something that is essential for understanding the Second Amendment. What they have been constantly ignoring is the history of the Second Amendment as a bill of rights provision. It is the extensive and divisive ratification era bill of rights debate they have ignored that directly resulted in development and proposal of Second Amendment related protection by Antifederalists. Professional historians have been prime movers in ripping the Second Amendment out of its actual Bill of Rights history and pasting it into a militia powers debate history that is unrelated.

Rather than the Second Amendment debate being all about the militia, with nary a mention of individual rights relating to private arms ownership, as insisted upon by the historians, the relevant debate was all about adding a Bill of Rights to the Constitution protecting the individual rights already found in the existing state bills of rights, every one of which included a Second Amendment related provision. Every convention voting on bill of rights amendments dealt with the right to keep arms, while less than half of those conventions voted on a militia powers amendment. These facts emphasize the point that the professional historian amici supporting gun control in the McDonald Supreme Court case are not familiar with the period historical sources most relevant for understanding the Second Amendment. This is the primary reason why their opinions are so often in direct conflict with the Founders' views and period facts. The best that can be said for the historians' Second Amendment claims is that they are completely unreliable.

Error as Foundation for the Mother of All Ideological Divides

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Historians Try to Sell Brooklyn London Benjamin Franklin Bridge to U.S. Supreme Court - Part 4

Conflation , Contradiction and Error in the Pennsylvania History McDonald Amicus from Professional Historians
[Updated February 20 & 26, 2010]
To the historians, the extensive ratification era arguments about militia powers and the need to amend them are viewed as proof that the Second Amendment resulted from those very arguments because the term "militia" appears in it. The following statement from the historians' brief indicates this general view:

"The Second Amendment came out of a debate about the purpose and control of militias." [p.23]

The above statement is false, as demonstrated in the following analysis, because the Second Amendment actually came out of the ratification era demands for a federal bill of rights consisting of existing state bill of rights protections. The following series of statements from the historians contain embedded quotes of two major Founders, George Mason and Patrick Henry, spoken in the 1788 Virginia Ratifying Convention. The historians thoroughly conflate Antifederalist desire for a militia powers amendment with the separate and distinct desire for Second Amendment related bill of rights protection in their use of these Founders' quotes.

""Mason warned of central governments’ penchant for disarming the people:

"An instance within the memory of some of this house will show us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British government was advised by an artful man [Sir George Keith], who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia."

The solution Mason saw was that “divine Providence has given every individual – the means of self-defense” by joining a militia to combat a standing army. Id. 380–81. Patrick Henry argued that “You have a bill of rights [in Virginia] to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power!” Id. 146. He sought to replicate at the federal level the state constitutional provisions allowing the people to protect themselves against government. The right of revolution was still foremost in his mind." [pp.25-26]
[The Id. 146 reference above from the brief is in error. It should read 446. DY]
The historical problem in the above amalgam of quotes is conflation of Mason militia powers debate quotes that are not directly Second Amendment related to a Henry bill of rights quote from two days later during bill of rights debate that is directly related to the Second Amendment. Mason's quotes are from June 14 debate on the Article 1, Section 8 militia powers. Mason stated the solution for his concerns by specifying the amendment he wanted. The "solution" that the historians read into Mason's second remark is diversionary and misleading, thus, it is discussed in a later post. Found within the same paragraph along with Mason's first quote is the solution to the problem he is describing, which the historians completely ignore:

"I wish that, in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them. With this single exception, I would agree to this part, as I am conscious the government ought to have the power." [The Origin of the Second Amendment, p.402]

Mason, chairman of the Antifederalist amendments committee, was the author of the Virginia Ratifying Convention's proposed Bill of Rights as well as a list of 20 "other" non-bill of rights amendment proposals. [OSA, pp.457-462] Compare Mason's stated amendment solution above to Virginia's proposed "other" amendment #11, which is also ignored by the historians:

"11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect ro provide for the same." [OSA, p.460]

This is the proposed amendment that directly results from the militia powers debate Mason's quote is extracted from. His stated amendment solution in the same paragraph as his quote is presented in virtually the same words as proposed amendment #11, which he wrote. Also, Mason clearly indicated this was the only amendment Antifederalists sought regarding the Article 1, Section 8 militia powers. Thus, the Second Amendment was not the solution Mason was seeking, nor could it possibly have been the result of that or any other day's militia powers arguments from the Virginia Ratifying Convention. The historians view that the Second Amendment "came out of a debate about the purpose and control of militias" is false because the period sources they ignore conclusively prove that the Second Amendment was not the solution sought by Mason, and that the actual solution, proposed amendment #11, was the only one sought by the Virginia Antifederalists relating to the Constitution's militia powers. The period evidence conclusively indicates that the Mason quote provided by the historians is not directly related to the Second Amendment.

Patrick Henry's quote from two days later, on the other hand, is directly related to the future Second Amendment. It not only directly dealt with the bill of rights issue, but Second Amendment predecessor language from the state bill of rights was also specifically introduced in the Virginia Convention in relation to it. Shortly before making the statement quoted by the historians, Henry initiated discussion about the need for a federal bill of rights on June 16 by having the 8th through 13th articles of Virginia's declaration of rights read. [OSA, p.434] These particular protections against state violation of the people's rights were later incorporated as the first eight amendments of the U.S. Bill of Rights (excepting the 3rd). [OSA, pp.743-746] This is the 13th article from Virginia's 1776 bill of rights:

"13. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty: and that, in all cases, the military should be under strict subordination to, and governed by, the civil power." [OSA, p.434]

Virginia' 1776 provision is the original state bill of rights progenitor of the Second Amendment's first clause. It was adopted verbatim, with added bill of rights protection from other states, by the 1788 Virginia Ratifying Convention as part of its proposed bill of rights. Here is Virginia's proposed Bill of Rights Article 17:

"17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power." [OSA, p.459]

This 1788 Virginia proposal is the original two-clause ratification era progenitor of the Second Amendment. James Madison not only voted for the above Virginia Ratifying Convention proposal, he promised to actually support the Second Amendment related parts of it along with all of the other individual rights protections in the proposed bill of rights from Virginia, and he directly relied upon it in drawing up his version of what became the Second Amendment. Madison's 1789 version of the above as presented to Congress stated:

"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country". [OSA, pp.654-655]

For comparison, this is the Second Amendment as passed by Congress and ratified by the states:

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bar arms shall not be infringed." [OSA, p.744]

To the historians, the Second Amendment was all about the militia, not about individual rights to possess arms, and it resulted from ratification era militia powers arguments. Period sources prove their use of militia powers arguments as relating to the Second Amendment are erroneous because they conflate largely unrelated arguments as well as an entirely unrelated amendment with the Second Amendment. That the Second Amendment is a bill of rights provision taken directly from state bills of rights provisions is what the period sources clearly show. These facts cannot be determined from the confusing information presented by the historians in their brief. They can only be determined by examining essential information the historians have ignored, such as Mason's militia powers amendment solution to the problem he was describing, and the resulting militia powers amendment he produced to solve that problem.

The historians constantly pursue a militia powers nexus throughout their brief while always downplaying the much more relevant bill of rights related history of the Second Amendment. Their attempted link of the two different subjects in the above amalgam of Mason and Henry quotes results in error due to conflation of unrelated militia powers and bill of rights arguments and solutions.

Because of such errors, the professional historians' amicus brief supporting Chicago's gun control laws in the McDonald case cannot be relied upon for factual information about the Second Amendment's history or intent.

Historians Try to Sell Brooklyn London Benjamin Franklin Bridge to U.S. Supreme Court - Part 3

Contradictions and Errors in the Pennsylvania History McDonald Amicus from Professional Historians


Continuing with ratification era related arguments, the historians make this assertion:

"Federalists also argued that the ability to amend the Constitution negated any necessity for armed revolt and made obsolete any right of revolution." [pp.23-24]

There is a very good reason why not a single statement by a Federalist is presented to back up this bold assertion from the historians. It is false. Federalists were just as aware as the Antifederalists that tyranny was possible, although they thought it a much more remote possibility under the proposed Constitution than their Antifederalist opponents, who considered it very likely. This is why it was the Antifederalists who supported, developed, and politically forced Federalists to accept the Bill of Rights. Both parties had much to say about the people possessing their own arms in the future. The Antifederalists feared that the people would be disarmed. Their opposition often stated a Federalist Mantra, which in its simplest form indicated that tyranny was impossible under the new Consitution because the people were armed, exactly the opposite sentiment claimed by the historians. [See The Founders View of the Right to Bear Arms, pp.93-94, 105-110, for information on the Federalist Mantra.] Here are just four of many examples of the arms related Federalist Mantra:

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States." [Noah Webster, An Examination into the Leading Principles of the Federal Constitution, Oct. 10, 1787, OSA, p.40]

"It was a chimerical idea to suppose that a country like this could ever be enslaved. How is an army for that purpose to be obtained from the freemen of the United States? They certainly, said he, will know to what object it is to be applied. Is it possible, he asked, that an army could be raised for the purpose of enslaving themselves and their brethren? or, if raised, whether they could subdue a nation of freemen, who know how to prize liberty, and who have arms in their hands?" [Theodore Sedgwick, Debate in the Massachusetts Ratifying Convention, Jan. 24, 1788, OSA. pp.230-231]

"[T]o the citizens of America . . . .
The power of the sword, say the minority of Pennsylvania is in the hands of Congress. My friends and countrymen, is is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. . . . Their swords, and every other terrible implement of the soldier, are the birthright of an American. What clause in the state or foederal constitution hath given away that important right. . . .the unlimited power of the sword is not in the hands if either the foederal or state governments, but, where I trust in God it will ever remain, in the hands of the people." [Tench Coxe, Newspaper Article, Feb. 20, 1788, OSA, pp.275-276, emphasis in original]

"The people are not to be disarmed of their weapons. They are left in full possession of them." [Zachariah Johnson, Debate in the Virginia Ratifying Convention, June 25, 1788, OSA, p.452]

Johnson's above comments appear in the middle of a speech in which he explains why it is impossible for an establishment of religion to be made by the government under the new Constitution. The fact is that one of the main Federalist arguments in favor of the U.S. Constitution, which had no bill of rights, was that the people could prevent tyranny because they not only possessed and knew how to use arms but they also understood their rights.

Antifederalists did not want to engage in future arguments about what those rights of the people were, or have to fight their government to retain them. Instead, they insisted that the protections limiting the state governments found in the existing American state bills of rights be added to the Constitution as a Federal Bill of Rights. Thus, their rights would be part of the law of the land, and every government official would have to take an oath to uphold them. Violations by the government of the rights of the people would be plain to all and would authorize the people to defend their rights by defending the supreme law of the land against the officials who were actually violating it.

The historians assertion that Federalists argued the right of revolution against tyranny was obsolete is false. This claim in their brief suggests that these historians are completely unfamiliar with ratification era sources, and that their opinions about how the Founders viewed the Second Amendment and an armed populace are completely unreliable.

Historians Try to Sell Brooklyn London Benjamin Franklin Bridge to U.S. Supreme Court - Part 2

Contradictions and Errors in the Pennsylvania History McDonald Amicus from Professional Historians

Dealing directly with the Pennsylvania Minority's bill of rights proposals, the historians make this observation:

"This suggests that Madison and Congress knew about the "Reasons of Dissent," read them, and treated them like a menu, selecting some options and rejecting others, including the individual-oriented gun-right provisions. . . .
The proposals of the Pennsylvania dissenters that were incorporated, sometimes almost word-for-word, into the [U.S.] Bill of Rights include the rights in the Free Exercise, Free Press, and Free Speech Clauses of the First Amendment, and those in the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments. . . . But Congress decided not to recognize the individual-oriented gun rights in the Dissent, including the right not to be disarmed except in exceptional circumstances and the right to hunt." [pp.28, 29]

However, contradicting their claim that Congress rejected the Minority's desired protection relating to the right to bear arms, the Second Amendment clearly contains Pennsylvania style language in its second clause, which James Madison altered from a Pennsylvania style declaration into a restrictive form:

"The right of the people to keep and bear arms shall not be infringed". [OSA, p.654, underline added]

Additionally, the Pennsylvania Minority's provision protected the people's right to "keep" arms by preventing passage of laws for "disarming the people or any of them". Exactly the same purpose was achieved in the Second Amendment by simply adding "keep" to the existing people have a right to bear arms language. It should be clear to any unbiased reader that the historians are in complete denial of period sources they are fully aware of.

For the sake of historical clarity, the Pennsylvania style language found in the U.S. Bill of Rights resulted from the fact that George Mason wrote the model for the U.S. Bill of Rights in the Virginia Ratifying Convention using the Virginia Declaration of Rights as the foundation with added provisions from other states, including Pennsylvania. While there is no doubt that the members of Congress were familiar with the proposals of the Pennsylvania Minority, they did not need to use the Minority's proposals directly as a menu, because their provisions were incorporated in Mason's proposal. All of the first eight amendments are directly based upon Mason's model Bill of Rights, [OSA, pp.388-390] which included the "bear arms" style language of the Pennsylvania Minority that originated in the 1776 Pennsylvania Declaration of Rights. [OSA, p.754]

There is another historical fact also contradicting the historians. A total of fifteen amendments were proposed by the Pennsylvania Minority. [OSA, pp.150-152] Only the first seven were based on quotes of Pennsylvania Declaration of Rights provisions, the seventh one being "the people have a right to bear arms" protection. The Speaker of the House of Representatives, which passed the Bill of Rights amendments, was Frederick Augustus Muhlenberg from Pennsylvania. He stated in an August 18, 1789 letter that the congressional proposal of amendments, mostly bill of rights provisions, about to be passed from the House to the Senate "takes in the principal Amendments which our Minority had so much at Heart". [FVRBA, p.195, OSA. p.799] The principal amendments were bill of rights proposals. That was the reason why the first amendments to the U.S. Constitution were Bill of Rights provisions, the first eight of which were all developed directly from state bills of rights protections. Pennsylvania was the state where "the people have a right to bear arms" language first appeared. That language is the foundation for the Second Amendment's second, restrictive clause.

That the historians are attempting to deny, separate, and explain away Pennsylvania "people have a right to bear arms" language as entirely unrelated to the Second Amendment is evident. Their attempts to do so lead to many more errors of fact than those documented above, as will be noted in future posts of this series.

Historians Try to Sell Brooklyn London Benjamin Franklin Bridge to U.S. Supreme Court - Part 1

Contradictions and Errors in the Pennsylvania History McDonald Amicus from Professional Historians

[This Benjamin Franklin Bridge series of posts will address numerous historical errors in the Pennsylvania and Early American history amicus brief filed with the U.S. Supreme Court by professional historians supporting the Windy City in the McDonald vs Chicago Second Amendment incorporation case. One of the four professional historians involved, Professor Finkelman, was also involved in two other McDonald historical briefs, one analyzed in the London Bridge series of posts, as well as being involved in the historians' 2008 brief supporting Washington DC in the Heller case. For those unfamiliar with this blog, the London Bridge series of posts consists of 6 parts starting January 16, 2010, and the Heller related series consists of 24 parts starting January 25, 2009, entitled Root Causes of Never-Ending Second Amendment Dispute. Both series address and document astonishing numbers of historical errors appearing in the Second Amendment related briefs from professional historians. In this Pennsylvania related brief, Professor Finkelman has teamed up with Nathan Kozuskanich, author of a paper on Pennsylvania history and the meaning of "bear arms" that was cited in the historians' Heller brief.]

The historians' argument begins with a look at the ideas of English Whig writers, particularly John Locke, and of several Americans regarding self-defense and defense of the polity, which the historians prefer to call "collective" self-defense. Their brief then deals with Pennsylvania colonial history as influenced by the Quakers who founded and controlled the colony for a large part of its history. They argue that Quakers had a significant impact on development of some provisions in the 1776 state constitution. However, they grossly exaggerate the extent of that influence, misinterpret the language and intent of the arms related provisions within it, and completely ignore the provisions of the state constitution authorizing and limiting the new government being established under it. Regarding the ratification period, when the U.S. Constitution was debated and a federal bill of rights was demanded, they make arguments based upon the proposals of the Pennsylvania Minority, including their arms related provision, which the historians deny has any relationship to the Second Amendment. The purpose of the brief is largely to explain away the "people have a right to bear arms for the defence of themselves and the state" language of the Pennsylvania Declaration of Rights as not protecting an individual right (except as allowed by the government). This and subsequently developed Pennsylvania language about "bear arms" is consistently separated from any connection to the Second Amendment in spite of extensive contrary period source evidence. The analysis of errors in this series will generally begin with the later ratification period and trace arguments back in time to the earlier revolutionary and colonial periods.

To properly understand the historians' view, their general statement about the Second Amendment's meaning follows:

"In the Second Amendment, the Founders codified the right of the people to bear arms collectively, with the understanding that some individuals could possess those arms, but the militia, and thus the individuals, would be in the service of the government, which would ensure that the militia was “well regulated.” [p.35]

Restating for clarity, some individuals who are members of a government regulated militia in government service would have the "right" to possess and bear arms if allowed or ordered to do so by the government. The extent of the conflict between the historians understanding of this "right" protected by the Bill of Rights and that of the Founders who developed and adopted it will become evident as the views of the former are documented to be in direct conflict with the statements and views of the latter.

Early in their McDonald amicus brief, the historians make the following assertion in relation to their request that the Supreme Court "reconsider its historical interpretation" in Heller:

"The Founders used “bear arms” to have specific meaning limited to the context of military service." [p.12, footnote 3]

This statement is false. The 1787 Second Amendment related provision from the Pennsylvania Minority's bill of rights proposal offered in that state's ratifying convention and later printed in their "Reasons of Dissent" directly contradicts it.

"That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals". [The Origin of the Second Amendment, p.151, underline added]

Clearly, "bear arms" is specifically used to refer to other than "military service" purposes in this proposal, a fact directly contradicting the historians erroneous claim. The Pennsylvania Minority's proposed bill of rights arms proposal not only protected each individual's right to bear arms for specified private purposes, such as defense and killing game, and for organized defense when necessary at the discretion of the individual, it also protected each individual's right to keep arms by preventing laws disarming the people. Note that this Second Amendment related provision was part of the first proposal for a federal bill of rights made in a state ratifying convention, and that Federalists voted down all of the Minority's bill of rights provisions, which are discussed in the next post of this series in more detail.