Root Causes of Never-ending Second Amendment Dispute - Part 5

Ignored Facts, Unfounded Assertions, and Pennsylvania's History in the Historians' Heller Amicus Brief
Updated September 10, 2010

Equating the right to bear arms and well regulated militia references found in state declarations of rights, the historians treated 'the people have a right to bear arms' provisions found in four state declarations of rights simply as variations on the 'well regulated militia' references found in the other four. In their view, all those arms related provisions were intended to allow for robust state regulation of arms because they were not a limit on legislative authority.

The historians argued that the first eight state declarations of rights were not intended to limit legislative authority. Their assertions on that matter have been shown to be erroneous due to direct conflict with relevant historical sources. The arms related protections in those state declarations of rights therefore cannot be taken a priori as subject to state legislative control as argued in the historians' brief.

As demonstrated in the previous post in this series (#4, below), Pennsylvania's Declaration of Rights provision that "the people have a right to bear arms for defence of themselves and the state" contradicts the historians' general assertion that none of the states' arms provisions related to individual rights for private purposes. Aware that Pennsylvania's arms provision "appears open to a broader interpretation" that contradicts their position, the historians have pursued two additional arguments in further support of their opinions, first, by reliance on two other closely related Declaration of Rights clauses and second, by reference to the colony's history.

Regarding that history, their brief states:

Assertion #5
"Pennsylvania had no militia at all during the two decades preceding independence. Unlike most colonies, its legal assembly continued to meet into the spring of 1776, but without mobilizing a provincial militia against the British threat. As a result, extra-legal committees arose in Philadelphia that were strongly supported by the province's voluntary militia units." [pp.11-12, emphasis added]

Fact Checking Assertion #5
As noted in Part 3, the historians' brief is far from devoid of inconsistency, and the above statements constitute another case in point. Exactly how is it possible for there to be voluntary militia in Pennsylvania during the period under discussion if there was no militia at all during that period? This clear inconsistency is another piece of evidence that there is something fundamentally wrong with the professional historians' brief regarding Second Amendment history.

The historians obviously meant that there was no legally established militia at all in Pennsylvania during that period, a distinction that removes the inconsistency of their statements and is historically accurate. Existence of two different kinds of militia - that formed by law and that formed by armed individuals voluntarily associating for mutual defense without any law – indicates the historians are fully aware that effective militia units established without legal support indeed existed prior to independence. Thus, their argument that Pennsylvania's “people have a right to bear arms for defence” language relates to legally established militia and was intended to allow for robust regulation of private firearms and complete regulation of all militia related arms is in error. Since the historians are incorrect about the fundamental purposes of state declarations of rights, why, we might ask, does Pennsylvania's right to bear arms language not actually apply to the voluntary militia they mentioned? This interpretation would actually fit the constitutionally stated purpose for Pennsylvania's Declaration of rights – to prevent violation of its protections on any pretense whatever by government.

Historical evidence from the period under discussion indicates that an effective militia could be formed just as well by voluntary association or private agreement of armed individuals without legal authority as could be accomplished by law. [FVRBA p.39] There certainly were such voluntary militia in Pennsylvania. They were normally referred to as associators partly because colonial Pennsylvania never had a militia law like those of the other colonies. Militia was a term much less used there than elsewhere in America, although associators, who spontaneously self-embodied for defense only during times of emergency, were sometimes referred to as militia in colonial Pennsylvania.

Pennsylvania's government hired troops on a few occasions. Other than that, however, lack of compulsory militia laws meant that all other organized defense within the colony was accomplished by individuals capable of armed self-defense taking up their privately owned arms and associating together for mutual defense. Such defensive self-embodying associations were formed on numerous occasions whenever threats originated and defense was necessary.

For a period of only one year starting in late 1755, a defensive association was established and authorized by law in Pennsylvania. However, even that defensive law was entirely voluntary and it was disallowed by the British for that very reason. The law did not required anyone to engage in defense related duties and did not require anyone to possess arms. Thus, there was never any duty of Pennsylvanians to bear arms controlled by government in colonial Pennsylvania's entire 90+ year history nor any requirement to possess arms for such a duty. These historical facts bring the assertions in the historians' brief into serious question again.

Pennsylvanians possessed a variety of arms that they used for hunting, target shooting, killing dangerous and crop destroying animals, self-defense, defense of their family and home, and defense of their community. Associating for organized mutual defense was accomplished by neighbors assembling with their personally owned firearms, forming companies, electing their own officers, and training themselves as an effective defensive military force – all without sanction of law. All of the firearms Pennsylvanians owned, which clearly included those normally used for military purposes, were useful for the defensive purposes later mentioned in the state's Declaration of Rights. In short, the people, meaning all the individuals residing in the colony, exercised unrestricted rights to possess arms and to use those arms for defensive purposes in the colony. For a history of such defensive associations in colonial Pennsylvania, see The Founders' View of the Right to Bear Arms, Chapter I.

The foregoing facts about Pennsylvania colonial history indicate why the patriots of that state used "the people have a right to bear arms for the defence of themselves and the state" in their 1776 Declaration of Rights. The drafters were simply stating what had always been the case previously, and more specifically, exactly what the case was at the very moment their Declaration of Rights was being established. For over a year prior to that language being written, the people of Pennsylvania had been associated with their own arms “for the defense of their lives, liberty and property” against the British without any support in law from Pennsylvania's government. This defensive activity directed against British government troops was entirely dependent on the people possessing their own firearms and ammunition in the first place. Thus, this right was fundamentally based upon individuals being able to protect themselves with their own arms and to associate for mutual defense using their own arms.

Completely unmentioned in the historians' brief and the secondary source they cite in support of their argument is the fact that power to make use of Pennsylvania's freemen and their sons for defensive purposes was specifically given to the new state government in the body of the state's constitution. That omission by the historians leads one to conclude that the declaration of rights' arms provision was intended for the same purpose. However, delegation of power to the government over the men of the state for defensive purposes in the body of the constitution and protection of the people's right to bear arms for defense of the state against violation by the state government have separate, distinct, and contrasting purposes. The constitution authorizes legitimate government military powers, while the declaration of rights limits all powers by preventing violation of the stated fundamental right by the state government.

Conclusion - Assertion #5 is Errounous
Pennsylvania's colonial history directly contradicts the historians' argument. Historical evidence indicates there was widespread individual ownership of arms in colonial Pennsylvania, something that the historians recognize. That history also indicates that on numerous occasions those arms were made use of by their owners for organized defense at their owners' discretion whenever danger threatened and without authorization under law, something that the historians completely ignore. It is clearly this individual rights based defensive activity that the Pennsylvania Declaration of Rights referred to when it stated that “the people have a right to bear arms” for defense of the state.

As can be seen, there is a simple reason why the historians' statements regarding bill of rights arms provisions are erroneous and the relevant historical facts directly contradict them. They are wrong. Their interpretation of the Second Amendment is without historical foundation.

[Analysis of the historians' Pennsylvania related argument relying on two other declaration of rights clauses will appear in the next post.]