Statements From Individual Framers and Founding Patriots:
Inconclusive as to the Meaning of any Constitutional Provision
How to Dethrone the Imperial Judiciary, by Dr Edwin Vieira, Jr., San Antonio, Texas: Vision Forum Ministries, 2004, page 65-66.
Statements From Individual Framers and Founding Patriots: Inconclusive as to the Meaning of any Constitutional Provision
A procedure popular among defenders of the Second Amendment who are attempting to define “the right of the people to keep and bear Arms” is to assemble a mass of quotations on the subject from various Founding Fathers. This, however, is a somewhat unreliable method, because it begs the question. Without an independent, objective definition, how can one know whether any particular Founding Father’s statement is correct? (footnote 3)
True, people often talk loosely about “the Founding Fathers’ intent” as expressed in the Constitution. But what they really mean (or should mean), is the Constitution’s intent, as expressed in its language. This language is definitive, because it constitutes the most formal and objective statement of the Framers’ and We the People’s intent: namely, “the supreme Law of the Land.” Thus, rather than relying on merely anecdotal evidence and perhaps fallible personal opinions to determine what “the Militia of the several States” means, one must look to the relevant laws: the Militia Acts of the Colonies and independent States during the pre-constitutional period, from the mid-1600s to the late 1700s. These Acts provide the best historical–and, more importantly, legal– evidence of the principles on which the Militia were formed and operated. Not only that. The Militia Acts display a remarkable consistency–even unanimity–in these principles, from New Hampshire in the North to Georgia in the South, proving that the definition of “the Militia of the several States” is not some vague or plastic verbal formula that was and now can be manipulated for political purposes, but a concept with as much surety and fixity of meaning as any to be found in the Constitution. (footnote 4)
- Although a Founding Father may be considered an ‘expert’ on a subject his words would not necessarily constitute conclusive evidence.
If some particular Founding Father could in some sense be deemed an “expert” on some subject, his words would not necessarily constitute conclusive evidence. After all, he could have been intentionally misstating the matter to make a point in a political debate. He could have been biased. He could have been honestly wrong or confused. Or he could simply have expressed himself badly. And how is one to know? Even in a court, where an expert testifies under oath, his opinion on a matter within his area of expertise is subject to cross-examination on both its basis and its sufficiency. And a jury may discount or disregard entirely the expert’s testimony, if it determines that the foundation for his opinion, his reasoning there from, or his conclusion is faulty—or that in some other respect he is unreliable as a witness. But the Founders are not present to be cross-examined on their opinions. (footnote 1)
1.) See generally “Is the D.C. Gun Case Off Target?”
- Legal principles cannot be established by reference, deference, and adherence to personalities.
One superficially read in constitutional history may object: Did not the Founding Fathers speak, again and again, to the meaning of “the right of the people to keep and bear Arms”? Certainly that is the technique often employed in naive studies of the Second Amendment: namely, marshaling statements attributed to James Madison, Thomas Jefferson, George Mason, and even Alexander Hamilton, in order to establish legal principles by reference, deference, and adherence to personalities. Now, these statements may themselves be facts—in the sense that such and so is what some Founder actually said or wrote. But their substance consists, not necessarily of historical or legal truths, but only of the opinions of the men who made them—even if those men were in high public office at the time. Fundamentally, this is why so-called “legislative history” such as records of legislative debates were rightly considered incompetent evidence during the founding era and for many decades thereafter: “Doubtless, the intention of the Congress which framed and of the States which adopted [a constitutional] Amendment must be sought in the words of the Amendment; and the debates in Congress are not admissible as evidence to control the meaning of those words.” United States v. Wong Kim Ark, 169 U.S. 649, 698 (1898). (Today, “legislative history” is often employed by lawyers and judges for the purpose of expanding or contracting laws beyond their actual terms—and legislative debates are often intentionally larded with tendentious statements in aid of this subversive procedure, either by legislators who opposed a law and want to see it constricted, or by legislators who supported a broader version of a law than was actually enacted, or both.) In addition, where the Constitution “asserts a certain right, or lays down a certain principle of law * * * , it speaks for the entire people.” Davis v. Burke, 179 U.S. 399, 403 (1900). Therefore, its meaning must be derived from its own words, as construed according to then-contemporary rules of interpretation upon which “the entire people” —that is, average Americans—would have relied, not just from the opinions of a handful of even the most illustrious statesmen of that time. (footnote 1)
1.) See generally “Is the D.C. Gun Case Off Target?”
- Individual statements from legislative debates were recognized as having no legal standing for the purpose of statutory interpretation even in the Founding era.
If the average legally literate American of the Founding era had enjoyed access to James Madison’s now famous notes of the debates (footnote 1) or to such coverage as the press had offered, he nonetheless would not have considered them admissible let alone dispositive evidence, because “legislative history” consisting even of verbatim debates, recorded by an official reporter and contemporaneously transcribed, had no legal standing for the purpose of statutory interpretation in that era. As the general rule came to be stated thereafter, “[i]nquiries into [legislators’] motives * * * are a hazardous matter”, (footnote 2) as is “bas[ing] speculations about the purposes or construction of a statute upon the vicissitudes of its passage”, (footnote 3) because “it is impossible to determine with certainty what construction” the legislature as a whole “put upon an act * * * by resorting to the speeches of individual members”, (footnote 4) the arguments of individual legislators being “so often influenced by personal or political considerations, or by the assumed necessities of the situation”. (footnote 5) Difficult to interpret in any event, and sometimes colored by ignorance or questionable motives, legislative debates and like materials are inadmissible as evidence of what statutes mean, (footnote 6) except in the most extraordinary situations plainly inapplicable to the Constitution, such as where statutory provisions, “literally applied, offend the moral sense, involve injustice, oppression or absurdity, * * * or lead to an unreasonable result plainly at variance with the policy of the statute as a whole”. (footnote 7) And if WE THE PEOPLE could and would not have relied even on formal “legislative history”, they certainly could and would not have treated as controlling the mere opinions that various prominent Americans may have stated informally. (footnote 8)
1.) See The Records of the Federal Convention of 1787, Volume 1, at xi-xxii.
2.) United States v. O’Brien, 391 U.S. 367, 383-384 (1968). Accord, Palmer v. Thompson, 403 U.S. 217, 224 (1971).
3.) Pine Hill Coal Company v. United States, 259 U.S. 191, 196 (1922).
4.) United States v. Trans-Missouri Freight Association, 166 U.S. 290, 318 (1897).
5.) Downes v. Bidwell, 182 U.S. 244, 254 (1901).
6.) E.g., Aldridge v. Williams, 44 U.S. (3 Howard) 9, 24 (1845); United States v. Union Pacific Railroad Company, 91 U.S. 72, 79 (1875); United States v. Trans-Missouri Freight Association, 166 U.S. 290, 318-319 (1897); United States v. Wong Kim Ark, 169 U.S. 649, 699 (1898).
7.) See, e.g., George Van Camp & Sons Company v. American Can Company, 278 U.S. 245, 253-254 (1929).
8.) See The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 43-44.
- The best evidence as to what “the right of the people to keep and bear Arms” entailed is not the Founders’ personal opinions throughout the 1600s and 1700s, but instead the actual pre-constitutional laws.
So, what can be identified as the objective basis for the Founders’ subjective opinions concerning “the right of the people to keep and bear Arms”? That basis was their own personal experience and knowledge of pre-constitutional history. (They were not talking about theory at all.) And in every case, both their experience and their knowledge were largely the products of laws—specifically, the pre-constitutional Colonial and State Militia statutes. Many, if not most or even all, of these men had actually served in the Militia in their Colonies and States, or at least were subject to and aware of the Militia laws prescribing the duties of service.
Therefore, the best evidence is not the Founders’ personal opinions as to what “the right of the people to keep and bear Arms” entailed throughout the 1600s and 1700s, but instead the actual pre-constitutional laws that specified what was supposed to be done, and what were the standards that governed when, how, and by whom it should be done, with respect to the actual “keep[ing] and bear[ing of] Arms” by “the people”. The Colonies and independent States enacted dozens and dozens of such laws from the early 1600s to the late 1700s. All were substantively the same (outside of some special provisions that applied only to “patrols” in the Slave States). These statutes tell us precisely what “well regulated Militia” were—indeed, many describe themselves in so many words as “regulating” the Militia of this or that Colony or State; and that their provisions were enacted and reenacted throughout that period, without substantive change, tells us that these statutes were understood to have “well regulated” the Militia. The statutes also tell us that “the right of the people to keep and bear Arms”—not simply “a” right, but “the” right—was actually in its operation a complex duty, and as the consequence of being a duty was also a right to be interposed in opposition to any interference with fulfillment of that duty. These laws are straightforward, impersonal, objective, historically verifiable in every detail, and utterly consistent in their various iterations over an extensive period of time. They validate the Founders’ opinions, not the other way around. They, not the Founders’ opinions or lawyers’ arguments based on such opinions, tell us what the Constitution means when it speaks of “Militia”, “the people”, and “Arms”. In a judicial world ruled by ratiocination and fair play, that should be enough. (footnote 1)
1.) See generally “Is the D.C. Gun Case Off Target?”
“Doubtless, the intention of the Congress which framed and of the States which adopted [a constitutional] Amendment must be sought in the words of the Amendment; and the debates in Congress are not admissible as evidence to control the meaning of those words.” (footnote 5)
Patriots should remember that only the Militia approach can serve the vital purpose of the Second Amendment, which is not to promote hunting, target shooting, or other “sporting” or “recreational” uses of firearms (although the Militia approach would protect these activities too), but instead is to arm “the people” so as to provide “the security of a free State” through “well regulated Militia.” By itself, an “individual right” to possess firearms cannot protect this country against the imposition of a police state by rogue public officials. For what good will arms in individuals’ hands prove to be against large-scale para-militarized police forces and other instruments of oppression, without thoroughgoing organization of those individuals and legal authority for their collective action in defense of their liberties? The Militia are the constitutional institutions that provide both—which is why the Second Amendment declares them to be “necessary to,” not simply useful let alone optional for, “the security of a free State.”
1.) United States v. Trans Missouri Freight Association, 160 6U.S.290, 318 (1897). Accord, United States v. Wong Kim Ark, 160 U.S. 649, 699 (1898).
2.) Downs v. Bidwell, 180 U.S 244, 254 (1901).
5.) United States v. Wong Kim Ark, 169 U.S. 649, 698 (1898).