Tuesday, March 3, 2009

Root Causes of Never-ending Second Amendment Dispute - Part 6

Ignored Facts, Unfounded Assertions, and the Historians' Heller Amicus Brief

The following is Article XIII from Pennsylvania's 1776 Declaration of Rights:

"XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power." [OSA p.754]

In further support of their opinion that the above language regarding the people's right to bear arms did not relate to the right of private ownership or personal use of arms, the historians rely on the two subsequent clauses from the declaration of rights and state that:

Assertions #6
"the opening clause of Article XIII immediately preceded two other clauses reiterating the usual condemnation of standing armies and endorsement of civilian supremacy. The Article as a whole is thus concerned with military matters." [p.11]

Fact Checking Assertion #6
On the contrary, Declaration of Rights Article XIII as a whole is concerned with limiting government power and assuring civil control of the government's military forces.

Immediately before this statement, the historians indicated that there were “well regulated militia” references in the state declarations of rights and analyzed variations among them. In their analysis, they treated “right to bear arms” provisions, including the above Pennsylvania “people have a right to bear arms” language, as simply variations on the well regulated militia references found in four other state declarations of rights. Thus, to the historians, Pennsylvania's right to bear arms language was merely a well regulated militia variant, and it related to military matters under government control.

A revealing point about their approach is that the historians never once mentioned that the four “bear arms” provisions among the eight state declarations of rights all began with exactly the same language indicating that it is “the people” who have a right to bear arms for defense. They always identified these provisions as right to bear arms provisions, and they interpreted them as if they actually stated that the people composing a government regulated militia have a right to bear arms.

The historians have used “military matters” here to mean government controlled military matters, just as they previously used “no militia at all” (see Part 5) to mean no government controlled militia at all. Their attempt here is to use the appellation “military matters” to magically transform power limiting provisions of the state declaration of rights into provisions describing government control over anything that relates to the military.

Exactly what military matters do these three clauses related to? The second clause of Article XIII warns that standing armies in time of peace are dangerous to liberty and indicates the government ought not keep them up. This is a clear reference to military matters over which the government's power is being restricted by the people who are establishing the new government. Standing armies are dangerous to liberty – the liberty of the people – and the government ought not to keep them up because the people wish to live in liberty and not be oppressed by a standing army. That is why this particular power restricting provision is included in Pennsylvania's Declaration of Rights.

The last clause mentions that the military will be subordinate to and governed by the “civil power.” Exactly who are the military being mentioned in that clause? Any standing army or troops certainly would qualify as the military. Any militia called out by the government and in service would qualify as the military as well. But what the historians are suggesting is that the people whose right to bear arms is protected in the first clause should be considered as the military as well. Are the people referred to in the first clause the military, or are the people whose right to bear arms is protected the civilians?

The historians have tied all of the bear arms provisions of the state declarations of rights to the militia. Militia is a term never defined by the historians, but one that they implicitly accept as entirely military in nature. Such a view is far, far from accurate. The militia, regardless of how extensive or restricted a body they are viewed as, were always understood to be civilians who functioned as soldiers only when called out for service. The people reference in the first clause is not to soldiers in service, but to all of Pennsylvania's civilians. It is not a military reference, and its only relationship to military matters under government control is that the civilians whose right to bear arms is protected in the first clause are the “civil power” mentioned in the last clause.

Conclusion - Assertion #6 is Erroneous
The purpose of the clauses in Article XIII are the direct opposite of what the historians have attributed to them. These clauses do not deal with military matters under complete government control but instead relate to restrictions on government power. The people of Pennsylvania, who authorized its state government and limited that government by the Declaration of Rights, are not only the civilians who have the stated right to bear arms for defense but also those who constitute the civil power that the military is subordinate to and governed by.

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