Contradictions and Errors in the Pennsylvania History McDonald Amicus
The historians brief attempts to convince the Supreme Court Justices that their unanimous Heller case understanding that Section XIII of Pennsylvania's 1776 Declaration of Rights ("that the people have a right to bear arms") related to individual rights was in error.
"As the Heller majority and both dissents recognized, the 1776 Pennsylvania Constitution provides insight into the then-prevalent conception of the right to bear arms. . . . Three clauses of its [Pennsylvania's] Declaration of Rights in particular warrant attention, the first, eighth, and thirteenth, all of which deal with individual or collective self-defense:" [p.18]
The historians then quote the following from Pennsylvania's Declaration of Rights:
"I. THAT all men are born equally free and independent, and have certain natural, inherent and unalienable Rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.
VIII. THAT every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service, when necessary, or an equivalent thereto . . . Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent.
XIII. THAT the people have a right to bear arms for the defence of themselves and the State; and as standing armies, in the 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." [pp.18-19]
The first assertion from the historians relating to the language they have quoted is as follows:
"This language reflects the Presbyterian complaints against the Quaker government’s perceived failure to provide for the common defense over the previous twenty years." [p.19]
The quoted language could not be a complaint against Pennsylvania's Quaker government for several reasons, the least of which is that Pennsylvania did not have a "Quaker government." The colony had a representative assembly, and Quakers, while a large minority, had not been the majority population in the colony for some time. Quakers were, however, able through political alliances to prevent the adoption of militia laws like those of the other colonies during the described period as well as throughout the prior colonial history when it was more directly under Quaker control. As a result, colonial Pennsylvania never required men to perform militia duties or obtain arms for such purposes, unlike the other American colonies that all passed militia laws in colonial times.
Pennsylvania copied most of the language in Sections I, VIII, and XIII from Virginia's Declaration of Rights. All Revolutionary Era Declarations of Rights borrowed or copied provisions from the declarations of earlier states except for Virginia, which produced the first such declaration. Thus, Virginia and Pennsylvania, the second state to produce a declaration of rights, were often borrowed from or copied by later states. The language quoted by the historians from Pennsylvania's Declaration of Rights is not unique to Pennsylvania because much of it was copied from Virginia, and all of Pennsylvania's was copied verbatim by Vermont. Pennsylvania's provisions were also borrowed by other states. These facts contradict the historians' assertion since the language clearly does not relate to any Quaker specific Pennsylvania history in these other states.
Examining the provisions of Section XIII specifically, it is evident that these clauses are not complaints against Quakers, but rather complaints against the British. Quakers never attempted to raise an army in time of peace, but the British actually did so in Massachusetts. Suggesting otherwise would be inane. Similarly, Quakers were the last persons on the planet to have any interest in making the military superior to the civil power, but that was exactly what the British had done in Massachusetts. As far as the people's right to bear arms for defense, Quakers never prevented any of the people from defending themselves, their families, their communities, or the colony. However, the British had been making every effort for a considerable time to prevent the inhabitants under their military control in Massachusetts from possessing powder or arms (a few Loyalists excepted), thus making it impossible for the people there to protect themselves or the colony.
Not only have the historians confused the Quakers and the British, but they have confused the power limiting intent of Section XIII bill of rights protection with the idea that the Section somehow authorized the government to control arms. This is evident in the very next sentence of the brief:
"Their [Presbyterians] predominant concern—as reflected in the [quoted] text—was establishing a coherent system of community defense so that the government could protect the people’s natural rights." [p.19]
Nothing in the language of the three sections quoted in the brief has anything to do with "establishing a coherent system of community defense so that the government" could take actions. The historians entirely overlook the stated purpose of these Declaration of Rights provisions. The title of the Declaration of Rights indicates that purpose as follows:
"A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH, OR STATE OF PENNSYLVANIA" [OSA, p.752]
In other words, the quoted language represents rights of the inhabitants, not establishment of government power over defense. This is made even more clear by reference to Section 46 of Pennsylvania's FORM OF GOVERNMENT, a major portion of Pennsylvania's Constitution that the historians fail to mention even exists:
"Sect. 46. The declaration of rights is hereby declared to be a part of the constitution of this commonwealth, and ought never to be violated on any pretence whatever." [Thorpe, V, p.3091]
This provision and the title of the Declaration of Rights clarify that the historians are taking the quotes out of their actual bill of rights related context, which is a limit on government authority, and using them instead as if they confer authority on the government over duties relating to arms and defense. That this is a major blunder is further clarified by reference to Section 5 of the Form of Government:
"Sect. 5. The freemen of this commonwealth and their sons shall be trained and armed for its defence under such regulations, restrictions, and exceptions as the general assembly shall by law direct, preserving always to the people the right of choosing their colonels and all commissioned officers under that rank, in such manner and as often as by the said laws shall be directed." [Thorpe, V, p.3084]
It cannot be more clear that it is Section 5 of the Pennsylvania Constitution's Form of Government that establishes "a coherent system of community defense so that the government" can take defensive actions, not any of the Declaration of Rights provisions. The historians have grossly confused the purpose of the government limiting Declaration of Rights protections they quote in an effort to tie the meaning of the Article XIII arms related clause to government authority.
There is no doubt that Pennsylvania's Quaker history influenced some of the state's Declaration of Rights language, but not in the way portrayed by the historians. The "people have a right to bear arms" language of Section XIII relates to longstanding activities of the people of Pennsylvania, not to the new government's authority. Remember, Pennsylvania's colonial government never required anyone to defend the colony or possess arms for that purpose. Thus, throughout the colony's history, all organized defensive activities, of which there were a considerable number, were carried out by individuals who voluntarily associated for defense when necessary. This defensive activity was possible because private arms possession and use were widespread in the colony, not because the government was providing direction under law for defense.
Individual men took up their privately owned arms, with which they could defend themselves, and joined with other individuals for organized defense. They formed companies of men, elected officers, and trained themselves for mutual defense. [see FVRBA, pp.15-25] It is these private arms possession related activities that the Section XIII language refers to. In fact, the people of Pennsylvania had been continuously engaged in defending their natural rights against the actions of British government officials and forces for over a full year before the text the historians quote was ever written.
Thus, the belief of the historians that the quoted language represents complaints against Quaker government in Pennsylvania or is intended as support for government authority rather than as provisions that are actually a limit on government authority is historically inaccurate and unsupportable.
Pennsylvania's 1776 Constitution began with an untitled preamble, which among other things indicated that the Constitution consisted of a Declaration of Rights and Form of Government. The following headings and excerpts of provisions from the 1776 Pennsylvania Constitution are presented here because they are of essential importance in examining various misleading and erroneous claims in the historians' McDonald brief. Note that the underlined portions of Declaration of Rights sections I, VIII, and XIII, below, are the specific clauses quoted by the historians in their brief.
"A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH, OR STATE OF PENNSYLVANIA
I. That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.
. . . .
VIII. That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service, when necessary, or an equivalent thereto: But no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives: Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent, nor are the people bound by any laws, but such as they have in like manner assented to, for their common good.
. . . .
X. That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure. . . [under general warrants that "are contrary to that right"]
. . . .
XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.
XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the 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.
. . . .
XVI. That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance." [OSA, pp.752,754]
. . . .
"PLAN OR FRAME OF GOVERNMENT FOR THE COMMONWEALTH
OR STATE OF PENNSYLVANIA
. . . .
Sect. 5. The freemen of this commonwealth and their sons shall be trained and armed for its defence under such regulations, restrictions, and exceptions as the general assembly shall by law direct, preserving always to the people the right of choosing their colonels and all commissioned officers under that rank, in such manner and as often as by the said laws shall be directed.
Sect. 6. [Every freeman of twenty-one years of age resident in the state for one year prior to election for representatives who pays taxes, and their sons of that age, even if they do not pay taxes, shall be intitled to vote. {condensed}]
. . . .
Sect. 46. The declaration of rights is hereby declared to be a part of the constitution of this commonwealth, and ought never to be violated on any pretence whatever." [Thorpe, V, pp. 3084, 3091]
Showing posts with label Pennsylvania history. Show all posts
Showing posts with label Pennsylvania history. Show all posts
Saturday, April 17, 2010
Monday, February 8, 2010
Historians Try to Sell Brooklyn London Benjamin Franklin Bridge to U.S. Supreme Court - Part 2
Contradictions and Errors in the Pennsylvania History McDonald Amicus from Professional Historians
Dealing directly with the Pennsylvania Minority's bill of rights proposals, the historians make this observation:
"This suggests that Madison and Congress knew about the "Reasons of Dissent," read them, and treated them like a menu, selecting some options and rejecting others, including the individual-oriented gun-right provisions. . . .
The proposals of the Pennsylvania dissenters that were incorporated, sometimes almost word-for-word, into the [U.S.] Bill of Rights include the rights in the Free Exercise, Free Press, and Free Speech Clauses of the First Amendment, and those in the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments. . . . But Congress decided not to recognize the individual-oriented gun rights in the Dissent, including the right not to be disarmed except in exceptional circumstances and the right to hunt." [pp.28, 29]
However, contradicting their claim that Congress rejected the Minority's desired protection relating to the right to bear arms, the Second Amendment clearly contains Pennsylvania style language in its second clause, which James Madison altered from a Pennsylvania style declaration into a restrictive form:
"The right of the people to keep and bear arms shall not be infringed". [OSA, p.654, underline added]
Additionally, the Pennsylvania Minority's provision protected the people's right to "keep" arms by preventing passage of laws for "disarming the people or any of them". Exactly the same purpose was achieved in the Second Amendment by simply adding "keep" to the existing people have a right to bear arms language. It should be clear to any unbiased reader that the historians are in complete denial of period sources they are fully aware of.
For the sake of historical clarity, the Pennsylvania style language found in the U.S. Bill of Rights resulted from the fact that George Mason wrote the model for the U.S. Bill of Rights in the Virginia Ratifying Convention using the Virginia Declaration of Rights as the foundation with added provisions from other states, including Pennsylvania. While there is no doubt that the members of Congress were familiar with the proposals of the Pennsylvania Minority, they did not need to use the Minority's proposals directly as a menu, because their provisions were incorporated in Mason's proposal. All of the first eight amendments are directly based upon Mason's model Bill of Rights, [OSA, pp.388-390] which included the "bear arms" style language of the Pennsylvania Minority that originated in the 1776 Pennsylvania Declaration of Rights. [OSA, p.754]
There is another historical fact also contradicting the historians. A total of fifteen amendments were proposed by the Pennsylvania Minority. [OSA, pp.150-152] Only the first seven were based on quotes of Pennsylvania Declaration of Rights provisions, the seventh one being "the people have a right to bear arms" protection. The Speaker of the House of Representatives, which passed the Bill of Rights amendments, was Frederick Augustus Muhlenberg from Pennsylvania. He stated in an August 18, 1789 letter that the congressional proposal of amendments, mostly bill of rights provisions, about to be passed from the House to the Senate "takes in the principal Amendments which our Minority had so much at Heart". [FVRBA, p.195, OSA. p.799] The principal amendments were bill of rights proposals. That was the reason why the first amendments to the U.S. Constitution were Bill of Rights provisions, the first eight of which were all developed directly from state bills of rights protections. Pennsylvania was the state where "the people have a right to bear arms" language first appeared. That language is the foundation for the Second Amendment's second, restrictive clause.
That the historians are attempting to deny, separate, and explain away Pennsylvania "people have a right to bear arms" language as entirely unrelated to the Second Amendment is evident. Their attempts to do so lead to many more errors of fact than those documented above, as will be noted in future posts of this series.
Dealing directly with the Pennsylvania Minority's bill of rights proposals, the historians make this observation:
"This suggests that Madison and Congress knew about the "Reasons of Dissent," read them, and treated them like a menu, selecting some options and rejecting others, including the individual-oriented gun-right provisions. . . .
The proposals of the Pennsylvania dissenters that were incorporated, sometimes almost word-for-word, into the [U.S.] Bill of Rights include the rights in the Free Exercise, Free Press, and Free Speech Clauses of the First Amendment, and those in the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments. . . . But Congress decided not to recognize the individual-oriented gun rights in the Dissent, including the right not to be disarmed except in exceptional circumstances and the right to hunt." [pp.28, 29]
However, contradicting their claim that Congress rejected the Minority's desired protection relating to the right to bear arms, the Second Amendment clearly contains Pennsylvania style language in its second clause, which James Madison altered from a Pennsylvania style declaration into a restrictive form:
"The right of the people to keep and bear arms shall not be infringed". [OSA, p.654, underline added]
Additionally, the Pennsylvania Minority's provision protected the people's right to "keep" arms by preventing passage of laws for "disarming the people or any of them". Exactly the same purpose was achieved in the Second Amendment by simply adding "keep" to the existing people have a right to bear arms language. It should be clear to any unbiased reader that the historians are in complete denial of period sources they are fully aware of.
For the sake of historical clarity, the Pennsylvania style language found in the U.S. Bill of Rights resulted from the fact that George Mason wrote the model for the U.S. Bill of Rights in the Virginia Ratifying Convention using the Virginia Declaration of Rights as the foundation with added provisions from other states, including Pennsylvania. While there is no doubt that the members of Congress were familiar with the proposals of the Pennsylvania Minority, they did not need to use the Minority's proposals directly as a menu, because their provisions were incorporated in Mason's proposal. All of the first eight amendments are directly based upon Mason's model Bill of Rights, [OSA, pp.388-390] which included the "bear arms" style language of the Pennsylvania Minority that originated in the 1776 Pennsylvania Declaration of Rights. [OSA, p.754]
There is another historical fact also contradicting the historians. A total of fifteen amendments were proposed by the Pennsylvania Minority. [OSA, pp.150-152] Only the first seven were based on quotes of Pennsylvania Declaration of Rights provisions, the seventh one being "the people have a right to bear arms" protection. The Speaker of the House of Representatives, which passed the Bill of Rights amendments, was Frederick Augustus Muhlenberg from Pennsylvania. He stated in an August 18, 1789 letter that the congressional proposal of amendments, mostly bill of rights provisions, about to be passed from the House to the Senate "takes in the principal Amendments which our Minority had so much at Heart". [FVRBA, p.195, OSA. p.799] The principal amendments were bill of rights proposals. That was the reason why the first amendments to the U.S. Constitution were Bill of Rights provisions, the first eight of which were all developed directly from state bills of rights protections. Pennsylvania was the state where "the people have a right to bear arms" language first appeared. That language is the foundation for the Second Amendment's second, restrictive clause.
That the historians are attempting to deny, separate, and explain away Pennsylvania "people have a right to bear arms" language as entirely unrelated to the Second Amendment is evident. Their attempts to do so lead to many more errors of fact than those documented above, as will be noted in future posts of this series.
Sunday, March 1, 2009
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.]
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.]
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