Why DC’s Gun Law Is Unconstitutional

David E. Young has written a fantastic, historical treatment of why a recent amicus brief in favor of the D.C. gun ban is way off base as well as based on bad historical research. Filed by “fifteen professional academic historians,” the piece makes all sorts of missteps and excludes fact all too often. These so-called historians are just plain wrong so often that one gets the feeling that they let agenda get in the way of truth and research.

This piece was originally published by the History News Network and is a must read for anyone interested in our 2nd Amendment rights.

Why DC’s Gun Law Is Unconstitutional

Historical arguments about American bills of rights are major points of discussion in the District of Columbia vs Heller case currently before the U.S. Supreme Court. At issue is exactly what the Second Amendment to the U.S. Constitution means and whether it was proper for the U.S. Court of Appeals for the District of Columbia to overturn Washington D.C.’s handgun ban for violating the Second Amendment. An amicus brief in support of Washington D.C.’s handgun ban dealing with the historical issues in the case was filed by fifteen professional academic historians. One would expect such a brief to be historically accurate, address the Second Amendment in its proper Bill of Rights related context, and include the most relevant figures, statements, and actions for understanding any historical issues in the dispute. However, any such expectation is left largely unfulfilled in the historians’ brief.

The historians’ Heller amicus brief begins with a look at the English Bill of Rights, which limited only the king, not the legislative branch of government. James Madison indicated during his speech to Congress introducing the Bill of Rights provisions that the comparison was inapplicable. The reason was because their purposes were different. England’s Bill of Rights did not limit the legislative branch at all, while the fundamental rights protections in American bills of rights were understood as limiting all branches of government.

The historians’ brief bizarrely claims that only two states, Massachusetts and Pennsylvania, actually made their declarations of rights a part of their state constitutions. This statement is factually incorrect. On the contrary, two other states, Vermont and North Carolina, copied verbatim the Pennsylvania Constitution’s language making their declaration of rights a part of their state constitution. Also, George Mason specifically stated in the Virginia Ratifying Convention that the 1776 Virginia Bill of Rights, which he was the author of, was part of Virginia’s Constitution. Mason’s statement was made to illustrate the need for a federal bill of rights based upon the state bills of rights because the proposed U.S. Constitution allowed Congress to violate the rights of the citizens that were protected in the state bills of rights. Other historical materials exist that directly contradict the historians in this matter as well.

In further pursuit of their clearly mistaken view, it is asserted in the historians’ amicus that fundamental rights protections, which they recognize are listed within the original states’ declarations of rights, were not understood as legally binding commands. This statement is directly contradicted by the original constitutions of Pennsylvania, Vermont, and North Carolina, all of which indicate that their bill of rights ought never to be violated on any pretense whatever. Also contrary to the historians’ claim, George Mason indicated in the 1788 Virginia Ratifying Convention that the protections in Virginia’s Bill of Rights were paramount to the power of the state legislature. Mason’s talking points under discussion at that moment were six specific provisions of Virginia’s Bill of Rights, including its Second Amendment predecessor, all of which Mason himself wrote in 1776. In addition, James Madison’s directly contrary view that the American state bills of rights were limits on the state legislatures was stated at least twice in his Bill of Rights introduction speech to Congress.

Next, the historians’ amicus addresses the Second Amendment-related language within the existing state bills of rights, which they have just mistakenly claimed were not understood as limits on the state governments or part of the state constitutions. These provisions, upon which the Second Amendment’s language was directly based, are treated exactly as the Second Amendment’s language itself. The historians assert, for example, that Pennsylvania’s language–“the people have a right to bear arms for the defence of themselves and the state”–does not refer to a private right. On the contrary, this language cannot relate to anything else. Prior to the formation of this bill of rights language, which was the very first of its kind in a bill of rights context, there had never been any requirement to possess or bear arms for military purposes under the control of government in Pennsylvania during its entire prior colonial history. All organized defense within colonial Pennsylvania had been accomplished solely by armed individuals capable of self-defense associating together for mutual organized defense or, in some cases, the hiring of willing volunteers as troops. Because of the foregoing fact, the 1776 Pennsylvania Constitution contains a provision specifically giving the new state government authority over the men of the state for compulsory military service, but that provision is not in the Bill of Rights. The historians’ interpretation that “the people have a right to bear arms” language within the Bill of Rights relates only to compulsory militia matters under state control and not a private right is preposterous. The fact that this provision was written solely as a result of Pennsylvanians taking up their own arms with which they could defend themselves and forming defensive associations to protect their rights against the British is completely lost on the historians.

These fifteen professional academic historians have overlooked something of fundamental importance for understanding the Second Amendment by so quickly dismissing the related provisions that are found in every period state bill of rights, all of which are Revolutionary Era documents. This is largely the result of failure to examine them historically, to trace back their development, to discover their earliest author and normal period usage, or to compare them closely. George Mason was the first American state bill of rights author, as well as the first to place a well-regulated militia reference in such a bill of rights context. Over a year prior to writing the 1776 Virginia Bill of Rights, Mason was using the well-regulated militia language to describe a self-embodying defensive association of all the freemen in Fairfax County, Virginia. Associating for defense depended upon the men having their own arms and, of necessity, had to bypass government control in order to protect the people against unconstitutional actions by government forces and officers. This is how Americans defended themselves while taking all authority away from the existing governments. These defensive actions were taken in many areas long before the advent of hostilities. Mason’s well-regulated militia was exactly like the defensive associations often self-embodied among the Pennsylvanians.

George Mason prepared a three-part structure with leading Second Amendment-related language for the Virginia Bill of Rights that was copied into every Revolutionary Era state bill of rights. The historians are well aware of the statements within these “Mason Triad” structures; but they do not notice the universally used three-part structure itself, do not make the obvious connection between the three parts, nor do they identify them as a fundamental proclamation upon which American liberty and free governments are based. They misinterpret bill of rights-related Mason Triads as being all about government control of the militia, even when the militia is not mentioned. These provisions were intended to limit the government, something the historians conveniently though mistakenly denied before examining these provisions. As noted above, in the view of its bill of rights originator, well-regulated militia related to the people being able to self-embody with their own arms for defense against unconstitutional actions of government implemented by force. These universally present state bill of rights Mason Triads always consisted of a leading armed civilian population reference (either well-regulated militia or right to bear arms), followed by a condemnation of standing military forces, with a trailing statement that the military will be under the control of the civil power, the armed civilian population.

After separating all Second Amendment-related language from any possible relationship to private rights, the historians then completely depart from any Bill of Rights history and context to a militia history and context that is inappropriate for a Bill of Rights provision. In virtually every following comment, the historians treat the Second Amendment as entirely related to militia matters under complete state government control. Since when did the Federalists become champions of state powers over the militia? It would be pointless to address all of these professional historians’ irrelevant examples, especially since they lead only further and further away from the relevant historical sources clarifying the Second Amendment’s actual history and intent.

The historians next address the development in the Federal Convention of the congressional power over the militia because, in their slanted view, that is the spark that ignites all desire for the Second Amendment. What the historians ignore from within the Federal Convention is the very origin and purpose of the struggle to add a bill of rights to the Constitution, just as they ignore the subsequent long political struggle extending until the Bill of Rights provisions seem to miraculously appear out of nowhere in Madison’s hands within Congress. What is missing from the historians’ account is any mention of the Antifederalist struggle for, development of, or statement of purpose regarding the Bill of Rights provisions that James Madison promised to support in the Virginia Ratifying Convention and later actually took to Congress as the foundation of the U.S. Bill of Rights.

Toward the close of the Federal Convention, George Mason made an attempt to obtain a bill of rights committee. His concern was that the laws of Congress were to be paramount to the states’ bills of rights, thus, leaving the individual rights already protected against the states open to violation by laws of the new Congress. The Convention voted down a bill of rights committee. Mason, incensed, refused to sign the Constitution. He became the leading Antifederalist fighting against ratification and for a federal bill of rights throughout the Ratification Period. Mason’s bill of rights objections to the Constitution and refusal to sign were widely known and very persuasive. The Federalists argued against the need of any bill of rights consistently throughout the Ratification Period and they opposed bill of rights proposals except where politically forced to accept them. Thus, the historians’ amicus brief use of Ratification Era Federalist writings as explanations for bill of rights provisions developed by their Antifederalist opponents are particularly off base. It was the Antifederalists who supported, developed, proposed, and explained the purpose of a bill of rights during ratification, not the Federalists. That the historians do not delve into the bill of rights struggle at all is most revealing. It proves that they do not recognize the bill of rights struggle as the source from which the Second Amendment, a typical Bill of Rights provision, developed.

George Mason, later chairman of an informal Antifederalist committee in the Virginia Ratifying Convention, prepared a complete Bill of Rights to be proposed for the Constitution. His Bill of Rights provisions were all based directly on the Virginia State Bill of Rights with added provisions from those of the other states. Mason’s Bill of Rights, including the two-clause version of the Second Amendment he developed, was the model that all four of the last ratifying conventions relied on in developing their bills of rights. It was the provisions of Mason’s Bill of Rights, understood by Madison as protecting the great and essential rights, which Madison specifically promised to support and actually took to Congress as the foundation of the first eight amendments to the U.S. Constitution.

This more relevant historical information, completely ignored by the professional historians in their amicus brief, indicates that the Second Amendment became part of the Constitution, not in relation to any specific concern about militia powers as the historians persistently and mistakenly claim, but rather as part of a complete Bill of Rights taken from the pre-existing state bills of rights. Backing up this clear historical evidence, Mason himself wrote that he and his Antifederalist committee had not yet even considered any amendments of the militia powers in the letter he sent with the completed Bill of Rights (including its Second Amendment provision) to the Antifederalist leaders of New York to be used as the model for their proposed Declaration of Rights. The historians’ constant claims in the amicus linking the Second Amendment specifically to militia powers arguments are, once again, directly at odds with the most relevant historical facts and the understanding of the most involved Framers.

The Antifederalists’ concerns over the militia powers being given to Congress are viewed by the historians as proving that all Second Amendment-related discussion from the period was about state control of the militia. They misinterpret and largely ignore the repeated Antifederalist Mantra that the people or militia would be disarmed. In fact, the only time George Mason, the actual developer of the U.S. Bill of Rights’ provisions, is ever mentioned in their brief is to bolster their view that “disarm” means the government failing to arm militia forces under its control. To the historians, all the period arguments about the people being disarmed are unrelated to the private arms of the people being taken away from them or denied to them by the government. The historians treat the common countervailing Federalist Mantra, that the people are armed and can prevent tyranny, in exactly the same way. To them, this only means that the states will control the militia and arm the militia if the states decide it is necessary. Just like an astonishing amount of other relevant historical information, a considerable number of Antifederalist and Federalist Mantra statements are ignored in the historians’ amicus that could not possibly fit into the historians’ narrow, militia-centric view of the Second Amendment.

The big picture of what occurred in Congress is buried in the historians’ legalistic, militia-centric nitpicking about dropping and adding clauses to Madison’s Second Amendment proposal. Lost in this fine legal argument is Madison’s own understanding of what he was doing, what occurred in Congress, and what Congress produced. Madison noted several times that not many changes had been made to his original propositions for the Bill of Rights as they passed through the House of Representatives. After the Bill of Rights provisions emerged from Congress, Madison understood them to be so similar to Mason’s Virginia Convention originals that he was surprised Virginia delayed their adoption. In other words, Madison did not see any significant difference between what he proposed for the first eight amendments, what Congress adopted, and what the Mason led Antifederalists proposed that he had agreed to support, all of which were based on existing restrictions of state government authority. Also, while the Virginia legislature had reservations about the wording of the eventual First Amendment, it did not see any difference between Virginia’s desired Second Amendment predecessor and the Second Amendment language that Congress passed. Thus, it is clear that the Second Amendment fulfilled the Antifederalists’ desire to guard against tyranny by protecting the private rights to arms.

When the relevant historical information regarding the primary authors, statements, and actions related to the U.S. Bill of Rights are taken into account rather than ignored, the Second Amendment loses all of its confusing and controversial aspects. The Second Amendment becomes one of the plain Bill of Rights provisions in the first eight amendments protecting rights of the people against violation by the Federal Government. It was taken from the plain Revolutionary Era bill of rights provisions protecting rights of the people against violation by the state governments. It does not require a Ph.D. in history to figure this out.

It is not that the amicus historians fail to mention numerous historical facts. The problem is they often miss the significance of such facts in their rush to separate the Second Amendment from its actual private-rights-protecting nature. The professional academic historians’ always-slanted interpretations are far from helpful for a clear understanding of a subject that they have helped make much more complex. It becomes evident at the very beginning of the historians’ brief that their personally-held views are directly contradicted by the actual views of the two Founders, Mason and Madison, who were most closely associated with development of the provisions within the U.S. Bill of Rights. Some readers may uncritically accept the off-track presentation of these fifteen professional academic historians about the Second Amendment and the related provisions of the original state bills of rights. Those more interested in a clear understanding of the Second Amendment, one that is not in direct conflict with the views of the Founders and historical facts, would do better by relying directly on the period sources that are actually relevant for understanding the development of the U.S. Bill of Rights.

Mr. Young is the editor of The Origin of the Second Amendment, a source document collection cited extensively by the U.S. Fifth Circuit Court of Appeals in its Emerson decision and also by the Court of Appeals for the District of Columbia in its Parker decision. (The District of Columbia vs Heller case is Washington D.C.’s appeal to the U.S. Supreme Court of the Parker decision. ) He is also the author of a recently published definitive history of the Second Amendment entitled, The Founders’ View of the Right to Bear Arms. Information on Mr. Young’s books and research is available at http://www.secondamendmentinfo.com.

Copyright Publius Forum 2001