By David E. Young
The District of Columbia vs Heller case currently before the U.S. Supreme Court is the result of an appeal by Washington DC of the DC Circuit's Parker decision overturning the city's handgun ban for violating the Second Amendment. Several of the amicus briefs filed with the U.S. Supreme Court in support of Washington DC's handgun ban delve into historical arguments about the development and intent of the Second Amendment. The brief filed by the Educational Fund to Stop Gun Violence on behalf of numerous organizations and individuals not only relies upon Founding Era historical quotes within the brief but also adds 154 pages of period sources in its Appendix C. More than half of the Founding Era documents cited in the Educational Fund's brief and Appendix are taken from The Origin of the Second Amendment: A Documentary History of the Bill of Rights, which was edited and published by the author of this analysis.
The Education Fund's brief is off track from the very beginning due to lack of knowledge about Founding Era history. Its selection of documents was intended to illustrate a claimed state controlled militia purpose for the Second Amendment that is historically impossible. Also, the brief ignores hundreds and hundreds of pages from The Origin of the Second Amendment that relate to the Second Amendment's Bill of Rights development and purpose as a protection for private rights.
The Second Amendment is described in the brief as a structural reinforcement of federalism that protects state authority over militia and arms, and it insists that the Second Amendment does not protect any private right to possess and use arms on the part of the people. This federalism argument emphasizes a supposed Second Amendment related state vs federal power balance insisted upon by the Federalist Framers. The brief ignores the fact that Federalists were for Federal power. Once they got the Constitution ratified and won control of the First Congress, Federalists gave none of the power taken from the states back to the states. Also ignored by the brief is the fact that powers in America are not held solely by levels of government. This is evident in the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Federalism actually involved powers being divided between the state and federal governments by the people as well as power being reserving to the people.
The Education Fund's brief asserts that the "well regulated militia" and "security of a free state" language from the Second Amendment's first clause, as well as the "keep and bear arms" phrase and term "people" in the second clause, all relate to the militia, which is defined as the state authorized and controlled militia. All Founding Era sources containing militia powers arguments, disarming related arguments, and people related arms arguments are assumed and defined by the brief's authors as demonstrating that the Second Amendment was intended as a protection for state authority and control of the militia and arms. The brief thus sets itself up as a fallacious circular argument supported by assertions that period documents support its argument. Because the brief's authors are mistaken about the intent of the Second Amendment, the Appendix C document collection entirely consists of historical sources that either do not support or directly contradict the Education Fund's argument.
One example of an early Ratification Era document from Appendix C that does not support the brief's state controlled militia argument is the selection from Noah Webster's pamphlet An Examination into the Leading Principles of the Constitution, which appeared only one month after publication of the Constitution. Webster's statements that "before a standing army can rule the people must be disarmed" and that "the whole body of the people are armed, and constitute a force superior to any band of regular troops" have nothing to do with trying to procure a constitutional amendment assuring state control over the militia. Webster was a Federalist writing in support of the Constitution's paramount powers as written, not someone trying to make or justify amendments. It was the Antifederalist opponents of the Constitution who pushed for and developed amendments. Federalists only supported amendments within ratifying conventions when politically forced to do so in order to obtain ratification. Also, Webster was writing at least half a year prior to the first proposal of well regulated militia language in a Second Amendment related proposal for the Constitution.
Webster's arms related observations were a Federalist Mantra indicating that tyranny was impossible in America simply because the people were armed. His argument was intended to prove that the government could not execute unconstitutional laws by force. State militias are not mentioned by Webster (in fact, "state militias" are never mentioned in ANY period documents). Webster's comments were a straightforward statement clearly indicating that an armed populace was the status quo at the time of the nation's founding. Many Federalists asserted the Federalist Mantra in a variety of ways at the time in order to procure support for the Constitution from the people by emphasizing the new government's reliance upon the power of the people and their ability to prevent tyranny.
There is another Federalist Mantra in Appendix C entitled A Pennsylvanian III, which was written by Tench Coxe. It described the militia as all the farmers of America from 16 to 60 years old (over ninety percent of the population were farmers at that time). Coxe addressed this article to the citizens of America and described the militia as "ourselves". He noted that Congress was given no power to disarm the militia. In support of this statement, Coxe described the right to possess the arms of a soldier as an individual right of "an American", a "birthright" in fact, and he rhetorically noted the right had not been given away in either the federal or state constitutions. His point in this text was that an armed populace existed independent of either the state or federal level of government and this made tyranny impossible. Coxe ended his Federalist Mantra by noting that military power was not in the hands of either the state or federal governments. Instead, it was directly in the hands of the people themselves, literally, which is where he trusted in God it would always remain. A Pennsylvanian III directly contradicts the brief's view that militia references must always be taken to mean state authority over the militia, and that mention of militia in the Second Amendment proves it was intended as a state authority protecting federalism provision.
What the Federalists' Mantra actually indicated was that Federalists openly supported an armed civilian population, not that they supported state authority over the militia. After ratification, Federalists were perfectly willing to support the Bill of Rights provision that protected the right of individuals to keep and bear arms because throughout ratification they used the Federalist Mantra recognition of an armed populace as a reason the people should support the Constitution.
Another problem with the document selections of the Education Fund's brief involves ignoring more relevant sources in order to emphasize completely irrelevant documents mentioning state militia authority. For example, the brief quotes the Antifederalist Federal Farmer stating that the militia are the people immediately under the management of the state governments. Yet it ignores the observation one sentence later in the same paragraph that "to preserve liberty, it is essential that the whole body of the people always possess arms". Federal Farmer was here involved in the presentation of the Antifederalist Mantra that the people would end up without arms and would be defenseless against government military force. Other important points about the militia stated by Federal Farmer included that the militia were all the able-bodied men and that the able-bodied men being armed and the usual defense of the country was viewed as a fundamental or unalienable right in America. Also, while Federal Farmer was an Antifederalist, he often repeated the Federalist Mantra that the men were armed and could prevent government tyranny. It was one of Federal Farmer's main points that the armed populace check on abuse by government forces could be destroyed over time unless the powers of the new government were limited. Adding the protections found in the state bills of rights to the U.S. Constitution was one of his main points (completely overlooked in the brief, of course). Every one of the existing state bills of rights contained a Second Amendment predecessor protecting the fundamental or unalienable right of the people to possess arms.
The discussions in the brief about militia powers and how they should be divided between levels of government are conflated with discussions about danger to the continued existence of an armed populace as if they are one and the same. Similarly, the solutions to these two different problems are equated as if returning or guaranteeing militia arming power to the states could be accomplished by taking state bill of rights protection for an armed populace and adding it in a Bill of Rights for the Constitution. The fact that the Second Amendment is a U.S. Bill of Rights provision taken from state bill of rights provisions is not even discussed in the brief. In fact, the words "Bill of Rights" appear in the brief only as part of modern book titles being cited, in discussion of the English Bill of Rights, and in one period quote. That particular quote and the few Bill of Rights references found in some of the Appendix C period sources appear only by accidental circumstance of location in documents selected for their perceived support of the state militia authority only argument. How did the Education Fund's brief get so far off track relative to the Bill of Rights nature and development of the Second Amendment?
The answer is that the brief was never on track relative to the Bill of Rights in the first place. Early on, the Education Fund's brief asserts that the Framers borrowed the Second Amendment's "well regulated militia" text directly from state militia laws. According to the brief, volumes are spoken about the state authority related purpose and scope of the Second Amendment because its text came from a state authority exercising source. This assertion is completely false, as is the conclusion, and both are directly contradicted by relevant Bill of Rights related historical evidence. In fact, the brief's own Appendix C contains the very document that was the actual source for James Madison's Second Amendment related proposal to Congress. It is NOT a state militia law. On the contrary, it is a George Mason written Bill of Rights that was adopted by the Virginia Ratifying Convention on June 27, 1788.
Mason's 1788 Bill of Rights proposal included the original two-clause Second Amendment predecessor. Its well regulated militia reference consists of an EXACT quote of the 1776 Virginia State Bill of Rights, which Mason also wrote. Virginia's entire proposed U.S. Bill of Rights is based directly on fundamental rights protections found in the existing period state bills of rights, and it is these provisions that are the clear source for the first eight amendments to the United States Constitution. Even the "free state" language within the Second Amendment comes directly from the 1776 Virginia Bill of Rights through Virginia's 1788 Second Amendment related Bill of Rights proposal.
Appendix C of the brief also contains George Mason's Bill of Rights related speech in the Virginia Ratifying Convention on June 16, 1788, in which he plainly stated that the protections in Virginia's 1776 Bill of Rights were intended as limits on the state legislature. Thus, the brief's own document collection directly contradicts the argument of the brief again. It establishes that the original Second Amendment proposal of "well regulated militia" as well as "free state" language was not only based on state bill of rights language, but also that its author stated it's provisions were understood as a limit on the state legislature. Thus, the only volumes spoken about the purpose and scope of the Second Amendment based on its actual historical sources are that it was based directly upon a limit on state government authority protecting fundamental rights of the people just like the other first eight amendments to the Constitution. Just like the other first eight amendments, the Second Amendment was intended to protect specific fundamental individual rights against violation by the Federal Government. It was not intended as an alteration to, or balance of, militia powers between the state and federal governments.
In addition to the 1788 proposed Bill of Rights from Virginia, the Appendix C document collection contains a separate list of proposed amendments that were not based upon the state bills of rights. These proposals were newly developed in response to the Constitution's powers and included, for example, the predecessors of the Ninth and Tenth Amendments. It is in this list, not in the proposed Bill of Rights, that an amendment guaranteeing state control over the militia in plain English is found. It indicated that each state shall have power to provide for organizing, arming, and disciplining its own militia whenever Congress failed to do so. The intention of this militia powers amendment is what the Education Fund's brief equates to the Second Amendment, which is an entirely different provision for an entirely different purpose.
Toward the end of the Education Fund's brief it is observed that other nations such as Canada, New Zealand, and Australia with a common English heritage like that of the United States have all engaged in extensive gun control legislation. Britain has banned handguns just like Washington D.C., while Canada, New Zealand, and Australia strictly regulate arms possession. The brief emphasizes that the English Bill of Rights does not prevent England from banning handguns, the implication being that since the English Bill of Rights does not prevent banning handguns, neither should an American Bill of Rights. The English Bill of Rights did not limit the government of England one iota because it was only a limit on the king. That is not the case for American bills of rights, and it was for this reason the James Madison stated that comparisons between American and the English Bill of Rights were inapplicable. This particular argument from the brief, like all of the others presented, completely ignores American Bill of Rights development and purpose. It also ignores the fact that the vast majority of states entering the Union after the Constitution's adoption by the first thirteen states followed the example of the majority of original states and included a bill of rights containing Second Amendment related protection as part of their constitutions.
Just as the Education Fund's brief ignores American bills of rights, it also completely ignores a major glaring difference between the other English heritage countries listed (Britain, Canada, Australia, New Zealand) and the United States in relation to that heritage. The people of the United States engaged in an armed revolt against the British, who claimed unlimited governmental authority and violated American's rights by imposing an army in an attempt to make the military superior to the civilians and their elected officials. The people of the United States engaged in an armed struggle to retain their rights and be able to established new state governments that would protect those rights rather than violate them. The people later authorized the United States Constitution and amended it with the SAME protections for the rights of the people found in the state bills of rights, including protection for an armed civilian population.
Considering the fallacious nature of the Education Fund brief's argument, whether the 154 pages of period documents are attached in Appendix C, or an additional 500 pages added, the result would be the same. There is not a single period document that can back up the brief's argument about the Second Amendment being intended to protect state authority over the militia because that argument is erroneous. Federalists were not interested in assuring state authority in cases where they had given paramount authority to the new Federal Government. Since they controlled the First Congress, no amendments were made to alter Congress's paramount powers. The Second Amendment, taken directly from the state bills of rights provisions as indicated, is intended to protect the private right of individuals to possess and use arms for legitimate purposes, just as the other protections of the first eight amendments protect private rights.
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This page last updated: March 5, 2008