Critical Historical Commentary on the Pro-Washington DC Amicus Briefs
By David E. Young
Several of the amicus briefs filed in support of Washington DC's handgun ban in the Heller case rely on historical arguments and documents. There is one major historical flaw in all of these briefs. It is their tendency to set aside the Bill of Rights development, nature, and context of the Second Amendment. All of the historical briefs supporting something other than a private rights protecting purpose for the Second Amendment fall into this category, and as a result of this fact, there is quite a bit of overlap in the articles analyzing these briefs. Yet, no two of these briefs are exactly alike. Each one stresses some slightly different approach in its presentation diverting away from the most relevant historical actors, statements, and occurrences for understanding the Second Amendment for what it actually is - a Bill of Rights provision.
One of the most surprising briefs is that filed by fifteen professional academic historians. Amazingly, this brief contains clear errors of fact, as well as statements of views that are directly contrary to those expressed by the primary Framers of the Second Amendment, George Mason and James Madison.
Chicago filed its own amicus brief in the Heller case. The brief filed by Chicago heavily emphasizes a historically impossible federalism purpose for the Second Amendment rather than a rights protecting purpose. Federalists were for federal powers not state powers, but they were obviously not against protecting private rights as the first eight amendments prove.
One pro-DC amicus brief contains an extensive historical collection of documents in an Appendix. It was filed by the Education Fund to Stop Gun Violence on behalf of numerous organizations and individuals. The Education Fund's brief manages to doggedly avoid all American Bill of Rights discussion entirely, leaving mention of the subject in a few of the documents themselves as the only indication that the Second Amendment might actually be a Bill of Rights provision.
Three professors of linguistics filed an amicus brief supporting Washington DC's handgun ban in the Heller case. Their brief's stated purpose is to assist the U.S. Supreme Court in understanding eighteenth century grammar and the historical meaning of the language used in the Second Amendment. The linguists often cite period usage and then completely ignore it to pursue a completely military understanding of the Second Amendment. They never treat the Second Amendment in its proper Bill of Rights context. In spite of their best efforts, it is clear that the linguists are not overly familiar with the historical meaning of the Second Amendment's Founding Era terminology.
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This page last updated: August 6, 2016