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From Don Williams, small.corgi@verizon.net The truth and completeness of our history , while not perfect, is one of our society's valuable possessions because it helps us avoid the mistakes that have destroyed so many other prosperous and secure nations. Our society depends on historians' integrity and commitment to competence --in the same way we depend on the integrity of doctors, airline pilots, and sausagemakers. The Supreme Court has several judges who favor the “originalist” approach and hence are likely to be swayed by the historical narrative. Historians who support the "collective Right" interpretation of the Second Amendment (henceforth called “CRhistorians”) argue that they understand Early American history and that law professors supporting the "individual right" do not. Yet the criticisms of Arming America casts doubt on this claim. Not because every argument in the Constitutional Commentary and Chicago-Kent articles is refuted but because the prominent historians who cited Bellesiles thereby gave his findings credibility before the Judges of the Fifth Circuit Court and Supreme Court. There are a number of red flags in Arming America-- obvious even to a layman. Why did senior historians not address those flags before endorsing Bellesiles' history to the Courts? Why have they still failed to address them two years later? The judgement and expertise of CRhistorians can also be impeached because they share Bellesiles' narrowness of viewpoint plus several misconceptions of their own. Details follow. I) First Rakove Oversight 1) In his 23 May H-OIEAHC post, Mr Rakove states "The first [point] (as noted in my WMQ piece) is that Arming America has very little to say about the adoption of the 2d Amendment or its interpretation." This, of course, is not true. The Fifth Circuit Court cited Michael Bellesiles' Chicago-Kent article "The Second Amendment in Action" as one of the canonical documents defining the "collective right" interpretation. A copy of Bellesiles' article is at http://www.saf.org/LawReviews/BellesilesChicago.htm. Bellesiles starts off the article by saying "This Article is concerned with capturing the social, legal, and military context of the Second Amendment." However, this "context" is precisely what the Supreme Court will examine when interpreting the Second Amendment. Note that Bellesiles' very long article largely consists of slightly modified paragraphs taken from Chapter Seven of Arming America (pages 209-255 plus 262.) Forty seven pages is hardly saying "very little about the Second Amendment" poor Ira Gruber only got five pages in the W&M Quarterly forum on Bellesiles. Moreover, page 214 /paragraph one of Arming America confirms that the "point" of Chapter Seven is "the historical context" of the Second Amendment. II) Why Bellesiles Got It Wrong 2) In my opinion, Mr. Bellesiles' Chapter Seven has several significant errors and misstatements --some of which I will defer addressing for a few days. For now, I simply note my opinion that Bellesiles was wrong to suggest that the US was at risk in the War of 1812. Moreover, his assessment of militia performance and his depiction of the 1815 Battle of New Orleans are not consistent with the accounts of other historians, with US Army studies, or with primary sources like the letters of Andrew Jackson and the history by Latour. 3) As I noted earlier, a primary Bellesiles error in Chapter Seven is his argument that Congress took control of the militia in order to deal with two main threats: foreign attack and internal insurrection. As I noted earlier, Bellesiles discussion is incomplete and misleading to the average reader. Bellesiles chose not to discuss the third threat Congress and the Republic had faced: the Newburgh Conspiracy of 1783 -- in which the officer corps of the Continental Army was considering a military challenge to Congress. Another example of this third threat was (former) Vice President Aaron Burr's 1805 plot with General Wilkinson to split off the Western Territories from the United States using a covert alliance with European allies. The salient nature of the third threat was secrecy and the Founding Fathers were familiar with the power of secret conspiracies. From the viewpoint of the British Cabinet, the American Revolution was an insurrection by a secretive cult -- located in a primitive area, motivated by a strange ideology called "republicanism", and challenging the lawful authority/profits of a global empire via incendiary appeals to the local, uneducated populace. The CIA and National Counterintelligence Center have web sites describing the "Secret" history of the Revolution -- see http://www.cia.gov/cia/publications/warindep/frames.html and http://fas.org/irp/ops/ci/docs/ci1/ch1a.htm . They show that the Founding Fathers even used some of the tradecraft of today's Al-Qaeda: spies, secret inks, encrypted letters, dead letter drops (message stored in secret location for later pickup by another party), cutouts (secret communications conducted via intermediary/courier), networks and cells, covert operations,etc. (One amusing item is that Congress created Bellesiles’ vaunted Continental Army at the urging of Dr. Benjamin Church who at the time was the top British spy in North America, reporting to General Thomas Gage. Having dealt with the British military bureaucracy all his life, General Gage evidently decided to inflict one on George Washington. Note also that Congress also had a Secret Committee to covertly buy unregistered firearms they apparently didn’t have gun shows in those days. ) The relevance of intelligence tradecraft is that Congress early on encountered a conflict between the Executive Branch's assertion of "executive privilege" -- the need to keep some matters secret even from Congress -- and the need for Congressional oversight of the Executive's use of power. Daniel Hoffman discussed this issue at length in his book "Governmental Secrecy and The Founding Fathers"(1984) 4) The Constitution itself acknowledges that the President and Executive officers may be capable of Treason-- of waging war on the United States-- and gives Congress the power to remove them from office via impeachment. However, what mechanism did the Founding Fathers include to protect Congress if an Executive cabal ignores impeachment? After all, the Executive Branch commands the federal military and police forces whereas Congress is a debating society. What deters a cabal from striking without warning or under the cover of lawful emergency powers during a national crisis? One protection,of course, is that military officers swear an oath to the Constitution,not to the President. Yet this oath has been broken by some on occasion. President Lincoln responded to the attack on Ft Sumpter by calling out the militia -- in part because many of his regular officers like Robert E Lee were with Secretary of War Jefferson Davis, organizing the Confederate Army. (See http://www.electricscotland.com/history/america/civilwar/cw17.htm ). Some liberal gun control advocates of today were expressing “grave concern” in 1984 re Iran Contra in which 14 high ranking military and CIA officials allegedly broke their oath and conspired to form a funding source for the Executive Branch outside Congress’ knowledge, oversight, or control (http://www.fas.org/irp/offdocs/walsh/ ) The concern, of course, being that the fund could have supported covert Executive actions in the US as well as in Latin America. Iran Contra was revealed not by a Constitutional mechanism, but because Eugene Hasenfus was shot down over Nicaragua. Just as Watergate was revealed to Congress via the Washington Post’s source Deep Throat. Another protection is that Congress rules the District of Columbia. Hence Congress commands, and is protected by, the Capitol Police and militia of the District. However, this half-forgotten mechanism did not show well on September 11 -- the Chief of the Capitol Police has since resigned. While the President, Vice-President, and senior Executive officials were immediately protected, Congress was left to wander the Mall for hours , disorganized and unprotected. During the Cold War, arrangements were made to give the President extraordinary powers in a national emergency -but the assumption was that Congress would be around to exert oversight as a safeguard. 5) A third protection is that Congress controls who is in command of the militia -- the President or state governors. In Federalist 46, Madison described how the state governments could use the militia to resist illegal coercion by the Executive Branch. The importance of this mechanism is that it deters secret plots. A group might seize military and National Guard armories just as the British tried to seize Concord armory but no one can, in secret, conspire with, organize, arrest, or disarm the entire American population. The “Homeland Security” response to Sept 11 has obvious potentials for abuse over the long term. The Pentagon has even proposed creation of a command to handle military operations in the United States. Recently, Colonel Brinkerhoff has proposed instead that the militia handle homeland security see http://www.homelandsecurity.org/journal/Articles/Brinkerhoff_Nov01.htm for Colonel Brinkerhoff’s qualifications and proposal. III) Second Rakove Oversight 6) In his Chicago-Kent article [ http://www.saf.org/LawReviews/RakoveChicago.htm ] , Mr. Rakove spends several pages analyzing the issue of who constitutes the militia — whether it is a select group like the National Guard or the body of the people. His reasoning is so profound that I cannot discern what conclusion he reaches. Hence, I simply note that the early Congress, in the Militia Act of 1792, defined the militia as ,at a minimum, including all citizens of military age(18-44 years) who were not in the federal military. This definition still exists in the US Code of today with one change. In 1792, "all citizens" were defined as "all able-bodied white men". Today, "all citizens" are defined as "all able-bodied men plus female members of the National Guard". The First Congress stated in the Second Amendment that “the right of the people to keep and bear arms shall not be infringed”. CRhistorians argue that Congress was -- in that very same breath -- infringing that right by tying it strictly to militia service via the preamble “A well-regulated militia being necessary to the security of a free State,”. I argue instead that the preamble is intended to remind future Congresses of the essential need for the Amendment that a free state will not survive in the long run unless powerful factions are deterred by the knowledge that the people are armed and able to defend their Congress. That is why a Franklin Roosevelt was put in power during the Great Depression instead of an Adolf Hitler. Congress controls the militia but Congress cannot disarm the militia , just as Congress cannot dispense with the other Bill of Rights. The reason is that Congress would endanger the Constitution and the existence of future Congresses if it did so. In a related vein, the Founding Fathers also put in a Constitutional clause that any specific Congress can only fund the military for that Congress’ two year term. IV) Third Rakove Oversight 7) In his Chicago-Kent article, Mr Rakove also questions whether the Bill of Rights were meant to be legal constraints on Congress’ power, given that they were placed after the main text of the Constitution vice within the main body. He notes “Finally, the decision to frame the amendments as supplemental articles, rather than follow Madison's proposal to insert them directly into the original constitutional text, arguably had the effect of preserving a modicum of the juridical ambiguity . . . A bill of rights, in this view,was more a political than a legal text . . . the majority arguably still shared the dominant conception of 1776 which viewed a bill of rights as a statement of principles affirming the existence of particular rights but not clearly delegating responsibility for their enforcement or protection to any institution.” My understanding, however, is that the preamble to the Bill of Rights, agreed to by Joint Resolution of Congress, explicitly states that the Bill of Rights are “declaratory and restrictive clauses” on the power of the federal government and that they are an inherent part of the Constitution. See http://www.nara.gov/exhall/charters/billrights/preamble.html V) Fourth Rakove Oversight 8) In his article, Mr Rakove criticizes the Standard Model advocates for not looking at the “extant record” of the Constitutional Convention and records of the First Congress. However, Daniel Hoffman notes that both the House and Senate kept secret journals of sensitive deliberations. Hoffman notes that the House’s secret journal was lost in the War of 1812. The National Archives web site concurs and notes that many other House records were lost as well. (See http://www.nara.gov/nara/legislative/senate_guide/sgch01.html. ) The Senate conducted it’s internal deliberations on the Second Amendment in secret and left no record. My understanding is that the Senate of the Early Republic met in secret and did not start keeping records of its internal debates until 1794? Even then, Hoffman notes that Senator Maclay “alleged not only that the journals were full of mistakes, but that there were deliberate attempts to conceal the existence of dissent” op cit,page 57) Those who think the Senate has improved in the last 200 years may want to look at the current Rule 29: http://rules.senate.gov/senaterules/rule29.htm VI) Fifth Rakove Oversight I disagree with Rakove's argument that the Federalists had the upper hand in 1789. Changing the Articles of Confederation required unanimous consent of all 13 states -- the ratifications of the new Constitution in Virginia and New York had been very narrow. North Carolina and Rhode Island did not ratify until the Bill of Rights was submitted. The Federalists were under heavy pressure to address the concerns of the people lest the country splinter --especially with the European powers ready to meddle. VII) Sixth Rakove Oversight 9) Mr. Rakove concludes his paper by asking whether the concerns of the Founding Fathers, even if valid in 1787, would be relevant to today’s world a strange question for a historian. The Founding Fathers did not just look at their immediate situation. The Roman classics were the primary focus of eighteenth century education and the Fathers looked at the patterns of the Roman Republic’s fall for a guide. A look at historical tables of the Army’s personnel strength shows that the US followed Washington’s advice from the early republic up to the Cold War. The regular army was kept very small and wartime surges were handled by militia reserves. (See http://web1.whs.osd.mil/MMID/M01/sms211r.htm .) While the standing army was kept small, the size of the militia increased greatly as the US population rapidly grew. During the decades of the Cold War, however, the US kept a large standing army. Although the US military has been reduced since the fall of the Soviet Union, the military we have today is still sized to enforce order in a global empire—not to defend the homeland. The US defense budget is roughly $393 billion greater than the combined budgets of the next 25 largest military powers. Both major allies (Germany, Japan,UK) and major opponents (Russia, China) only spend on the order of $20-$60 billion: http://www.cdi.org/issues/wme/spendersFY03.html Today’s situation differs from the Cold War in that there is nothing to counterweight,divert and fix the enormous power of the Executive Branch. Today’s professional military is probably the most virtuous and loyal group in our society but it is becoming estranged from society since the end of the civilian draft. Some professional military officers have commented on this in recent years --see http://carlisle-www.army.mil/usawc/Parameters/1992/dunlap.htm and http://www.globalsecurity.org/military/library/report/1995/NRA.htm During the Cold War, it was necessary for Congress to give the Executive Branch enormous resources and free rein. Today, however, Congress should be reasserting it’s primacy but is having trouble doing so. For example, the Executive Branch’s secrets are supposed to be available to the House and Senate Committees which oversee Intelligence. Yet in 1996, the Clinton Administration asserted that personnel with high level security clearances (i.e., for “Sensitive Compartment Information” ) could not report concerns or crimes to Congress not even to the Intelligence Committees -- without permission from an Executive Branch official. See the background to the INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTION ACT OF 1998 at http://thomas.loc.gov/cgi-bin/cpquery/5?cp105:./temp/~cp105L0Of:e27603:&&sid=fO0L01pctennozirevtsaelihp1111loo&&report=hr747p1.105&&sel=TOC_27602&&previous_query=&&xform_type=100&&hold_doc_count=8&&level=3&&variant=yes&&item_number=5&&bool=n& (cut and paste this URL into your browser’s address line. )
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